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PRIVILEGES, IMMUNITIES, AND SUBSTANTIVE DUE PROCESS

Timothy Sandefur *

INTRODUCTION

For only the second time in recent memory, the U. S. Supreme Court has chosen to address the meaning of the Fourteenth Amend-ment’s Privileges or Immunities Clause.1 That clause, which most scholars now agree was intended as the centerpiece of the Amend-ment, was famously mutilated by the 1873 Slaughter-House Cases,2 when a 5-4 Supreme Court ruled against a group of Louisiana butchers who argued that a state-created monopoly in the slaugh-tering industry deprived them of constitutionally protected eco-nomic freedom. The decision entombed, if it did not actually kill, the Privileges or Immunities Clause, rendering it for all intents and purposes void.3 Now that the Court appears prepared to reconsider

* Principal Attorney, Pacific Legal Foundation. J.D. 2002, Chapman University School of Law; B.A. 1998, Hillsdale College. I wish to thank the editors of the New York University Journal of Law & Liberty for inviting me to contribute this piece, which is based in part on a paper presented to the journal’s March 2, 2009, symposium on the jurisprudence of Clarence Thomas. It is also based in part on my amicus curiae brief on behalf of the Pacific Legal Foundation and the Cato Institute submitted in McDonald v. Chicago.

1 McDonald v. Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted, 130 S. Ct. 48 (U.S. 2009). The other was Saenz v. Roe, 526 U.S. 489 (1999).

2 83 U.S. (16 Wall.) 36 (1873). 3 See, e.g., Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002) (“The Privileges and

Immunities Clause has been largely dormant since the Slaughter-House Cases . . . .”).

New York University Journal of Law & Liberty [Vol. 5:115 116

that decision, it is important that we understand the complexities of the Slaughter-House error, lest future courts also be led astray. It is equally important to understand what effect reviving the Privileges or Immunities Clause would have on the neighboring Due Process Clause.

In this article, I wish to explore these two questions. First, why was Slaughter-House wrongly decided? Although there are many flaws in that decision, I contend that the most fundamental explana-tion, and the one that accounts for the case’s other errors, involves important abstract principles of federalism and sovereignty. In short, Justice Samuel Miller and his colleagues failed to give effect to the concept of “paramount national citizenship” that the Amendment’s authors sought to constitutionalize.

Second, is it true, as some scholars and judges contend, that re-storing vitality to the Privileges or Immunities Clause would war-rant abandoning the theory of substantive due process? If so, then the Court’s forthcoming decision could herald an even more far-reaching revolution of law than it would at first appear. But as we will see, substantive due process is not a mere substitute for the lost Privileges or Immunities Clause, and overruling Slaughter-House should not coincide with an abandonment of the doctrine of “sub-stantive due process.” Rather, both constitutional provisions are independent, constitutionally valid sources of protection against excessive state power.

I. THE HISTORY OF SLAUGHTER-HOUSE

The 1873 Slaughter-House Cases were the Supreme Court’s first opportunity to interpret the freshly enacted Fourteenth Amend-ment. The case involved a Louisiana law that required the butcher-ing of cattle in New Orleans parish—formerly carried on by inde-pendent butchers working for themselves—to be conducted at a single abattoir, owned by a private corporation called the Crescent City Company.4 This law established a monopoly that benefited the

4 The only full-length book on Slaughter-House is RONALD LABBÉ & JONATHAN LURIE, THE SLAUGHTERHOUSE CASES (2003). Unfortunately, the book provides little discussion of the legal issues involved, and what discussion it does provide is shallow and unreliable. See Timothy Sandefur, Slaughtering the Fourteenth Amendment, 4 CLAREMONT REV. OF BOOKS 39 (2004), available at http://www.claremont.org/publications/crb/id.1381/article_detail.asp.

2010] Privileges, Immunities, and Substantive Due Process 117

private owners of a single business at the expense of the many small firms that had previously enjoyed the freedom to engage in the slaughtering trade. Notably, the law did not simply set health and safety regulations—already recognized as a legitimate government interest.5 Instead, it required that all slaughtering be done at a single private corporation. A modern analogy might be if the California legislature were to order that all automobiles in Los Angeles County were to be repaired at Aamco and nowhere else, with the result of shutting down hundreds of small car repair businesses. The 1869 Slaughterhouse statute—“An Act to Protect the Health of the city of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to Incorporate ‘The Crescent City Live Stock Landing and Slaughter House Company’”6—was not merely a routine exer-cise of the police power, but was what Professor Cass Sunstein has called a “naked preference”: namely, “the distribution of resources or opportunities to one group rather than another solely on the

However, it provides helpful historical details on the background of the lawsuit. Also helpful is PAUL KENS, JUSTICE STEPHEN FIELD: SHAPING LIBERTY FROM THE GOLD RUSH TO THE GILDED AGE 118–28 (1997).

5 See, e.g., Metropolitan Bd. of Health v. Heister, 37 N.Y. 661 (1868) (upholding the constitutionality of sanitary regulation of slaughterhouses). Justice Field, who dis-sented in Slaughter-House, emphasized this point. See Slaughter-House, 83 U.S. (16 Wall.) at 87 (Field, J., dissenting) (Government’s “power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society . . . . With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.”). Years later, he repeated this point. See Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U.S. 746, 766 (1884) (Field, J., concurring). None of the Slaughter-House dissenters, he wrote, “denied that the states possessed the fullest power ever claimed . . . to prescribe regulations affect-ing the health, the good order, the morals, the peace, and the safety of society.” Id. at 754. If the Louisiana Slaughterhouse Act simply prescribed such rules, “there would have been no dissent,” but the law also “created a corporation, and gave to it an exclusive right for twenty-five years to keep, within an area of 1,145 square miles, a place where alone animals . . . could be . . . slaughtered . . . . It is difficult to under-stand how in a district embracing a population of a quarter of a million, any condi-tions of health can require that the preparation of animal food should be intrusted to a single corporation for twenty-five years, or how in a district of such extent, there can be only one place in which animals can, with safety to the public health, be shel-tered and slaughtered.” Id. at 755.

6,Act of Mar. 8, 1869, No.117, 1869 La. Acts 170.


ground that those favored have exercised the raw political power to obtain what they want.”7 Small-scale butchers in New Orleans were legally deprived of economic freedom and potential income to benefit the owners of one private, politically influential corporation. Relying on centuries of legal precedent guaranteeing the individ-ual’s right to earn a living without the interference of government monopolies,8 many of the butchers challenged the constitutionality of the slaughterhouse monopoly, arguing, among other things, that their right to economic freedom was one of the “privileges or im-munities” of their citizenship, and that the Louisiana law abridged that right.9

The Court rejected this argument in an opinion written by Jus-tice Samuel F. Miller. In the Court’s view, the law was a health and safety regulation “aptly framed to remove from the more densely populated part of the city, the noxious slaughter-houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city.”10 Miller viewed the butchers’ attempt to invoke federal protection against the acts of their own state legislature as constituting a vast, unwarranted expansion of federal power. He believed that the Amendment distinguished be-tween two kinds of citizenship—federal and state—and that it pro-tected only those rights that “owe their existence to the Federal government, its National character, its Constitution, or its laws,”11 not rights that attach to or derive from citizenship in a state. Miller identified the short list of rights that he believed attached to federal citizenship: the right to travel to the seat of government,12 the right to demand federal protection when on the high seas,13 the right to peaceably assemble for a redress of grievances,14 the right to use

7 Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1689 (1984).

8 See generally Timothy Sandefur, The Right to Earn a Living, 6 CHAP. L. REV. 207, 207–34 (2003).

9 See Supplemental Brief and Points of Plaintiffs in Error, Slaughter-House, 83 U.S. (16 Wall.) 36 (1873), 1871 WL 14607 (claiming a privilege in labor that has “been di-minished and impaired, that this corporation shall have a monopoly”).

10 Slaughter-House, 83 U.S. (16 Wall.) at 64. 11 Id. at 79. 12 Id. 13 Id. 14 Id.


navigable waters,15 the right of citizens to change their state of resi-dence,16 and “the rights secured by the thirteenth and fifteenth arti-cles of amendment.” 17 But although Miller recognized that the butchers’ had a common law right to pursue their trade, he held that it and other common law rights “belong[ed] to citizens of the States as such,” and that the Fourteenth Amendment did not “place[]” that right “under the special care of the Federal govern-ment.”18 The Privileges or Immunities Clause afforded that right no protection because that right only inhered in state, and not federal, citizenship.

Justices Stephen J. Field, Joseph Bradley, Noah Swayne, and Morrison Waite dissented. Field, writing the longest of the dissenting opinions, observed that the decision rendered the Privileges or Im-munities Clause redundant of the Supremacy Clause. If the new Amendment “only refers…to such privileges and immunities as were before its adoption specially designated in the Constitution or neces-sarily implied as belonging to citizens of the United States,” then it did nothing, because the Supremacy Clause already forbids the states from interfering with federal authority.19 Such an interpretation ren-dered the clause “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”20 Field complained that the majority ignored the legisla-tive history leading to the Amendment’s adoption,21 and ignored the precedent defining the phrase “privileges or immunities”—specifically, Corfield v. Coryell,22 in which Justice Bushrod Washington observed that the Privileges or Immunities Clause of Article IV pro-tected certain inalienable and universal human rights, 23 and that “among these must be placed the right to pursue a lawful employ-ment in a lawful manner, without other restraint than such as equally

15 Id. 16 Id. at 80. 17 Id. 18 Id. at 78. 19 Id. at 96 (Field, J., dissenting). 20 Id. 21 Id. at 91–92. 22 6 F. Cas. 546 (C.C.E.D. Pa. 1823). 23 Id. at 551–52.


affects all persons.”24 Thus, unlike the Slaughter-House majority, Field believed that the privileges or immunities protected by the Amend-ment had long been recognized as either natural rights or common law rights. Centuries of common law precedent made clear that “monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to ac-quire property and pursue happiness,” and these common law rights were included in the privileges or immunities of national citizen-ship.25

Many scholars have noted that Slaughter-House signaled the Su-preme Court’s abandonment of Reconstruction efforts aimed at pro-tecting the rights and advancing the economic situation of former slaves.26 Indeed, the precedent quickly wreaked havoc on the constitu-tional rights of the politically vulnerable. First, in Bradwell v. Illinois,27 the Court ruled against Myra Bradwell’s argument that she had a con-stitutionally protected right to practice law on the same terms as a man. Among other arguments, Bradwell contended that the state’s refusal to allow her to practice law deprived her of the right to pursue her calling, guaranteed by the Privileges or Immunities Clause. But Justice Miller, writing for the majority, concluded that “[t]he opinion just delivered in the Slaughter-House Cases renders elaborate argument in the present case unnecessary,” because that decision meant that “the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government.” Three years later, in United States v. Cruikshank,28 the Court threw out the prosecution of a state official who led a white mob to murder more than 100 black Lou-isianans; although the victims had been peaceably assembling to pro-test grievances, and exercising other federal constitutional rights, the Court expanded on Slaughter-House’s dual-citizenship theory to con-clude that these rights were not actually federal in nature, but “re-main[ed] . . . subject to State jurisdiction.”29 Thus, although the First

24 Slaughter-House, 83 U.S. (16 Wall.) at 97–98. 25 Id. at 101–02 (citing Darcy v. Allein (The Case of Monopolies), (1602) 77 Eng.

Rep. 1260 (Q.B.)). 26 See, e.g., ERIC FONER, A SHORT HISTORY OF RECONSTRUCTION 224 (1990). 27 83 U.S. (16 Wall.) 130 (1872). 28 92 U.S. 542 (1875). 29 Id. at 551.


Amendment—and even the Slaughter-House decision itself30—specifies peaceable assembly as a right of federal citizenship, the Constitution only protects that right “against encroachment by Congress . . . For their protection in its enjoyment, therefore, the people must look to the States.”31 After that, the Privileges or Immunities Clause languished in desuetude, with the single irrelevant exception of Colgate v. Harvey,32 a case overruled only five years later.33

In the years since—and particularly in the years after the publi-cation of Michael Kent Curtis’ pathbreaking book No State Shall Abridge in 1986, scholars have formed a consensus that Slaughter-House was wrongly decided, and that, as Justice Clarence Thomas has put it, the Privileges or Immunities Clause “does not mean what the Court said it meant” in that case.34 But few of the discussions about Slaughter-House have focused on the philosophical and consti-tutional developments that led to the Fourteenth Amendment’s rati-fication, or how the Court undermined these crucial ideological de-velopments.

II. WHY WAS SLAUGHTERHOUSE WRONG?

While scholars today generally agree that Slaughter-House got things wrong, there is less agreement on what precisely it got wrong.35 Like Justice Field, many scholars argue that the Slaughter-House decision failed to address the legislative history behind the Privileges or Immunities Clause;36 others, that it construed the list of rights protected by the Amendment too narrowly;37 still others, that the majority rendered the Privileges or Immunities Clause redundant

30 See Slaughter-House, 83 U.S. (16 Wall.) at 79 (“The right to peaceably assemble and petition for redress of grievances . . . [is a] right[] of the citizen guaranteed by the Federal Constitution.”). In Cruikshank, the Court explained that this really only meant the right to petition Congress. 92 U.S. at 552.

31 Id. 32 296 U.S. 404 (1935). 33 See Madden v. Kentucky, 309 U.S. 83 (1940). 34 Saenz v. Roe, 526 U.S. 489, 522 n.1 (1999) (Thomas, J., dissenting). 35 Id. 36 See, e.g., Kimberly C. Shankman & Roger Pilon, Reviving The Privileges or Immu-

nities Clause to Redress The Balance Among States, Individuals, And The Federal Govern-ment, 3 TEX. REV. L. & POL. 1, 30–31 (1998).

37 See, e.g., Randy E. Barnett, The Proper Scope of The Police Power, 79 NOTRE DAME L. REV. 429, 464–75 (2004).


of the Supremacy Clause in violation of basic canons of construc-tion.38 But while these criticisms all have merit, they are only symp-toms of the Court’s more fundamental error. The Slaughter-House Cases’ most basic flaw lies in the Court’s refusal to breathe life into the conception of federal sovereignty and national citizenship shared by the Framers of the Fourteenth Amendment: a vision that, following constitutional scholar Jacobus tenBroek, I will call “paramount na-tional citizenship.”39

A. Antebellum Debates Over Sovereignty

The Fourteenth Amendment is a monument to America’s great-est constitutional crisis: the Civil War. That war had many cultural and economic causes, but its proximate cause lay in a constitutional controversy that began during the Antebellum Period, when two parties formed with competing visions of the nature of federal-state relations and of the rights enjoyed by federal citizens. These parties coalesced into the secessionist states’ rights party on one hand, and the Free Soil party, later called the Republican party, on the other. When the war ended, Republican leaders amended the Constitution to put an end to slavery and to ensure that their theory of para-mount national citizenship (which they believed to have always been part of the Constitution rightly understood) would be perma-nently preserved in the nation’s supreme law. To understand what the Privileges or Immunities Clause was intended to do, therefore, it is necessary to understand the antislavery constitutional doctrine they developed in the era surrounding the Civil War.40

38 See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 22–23 (1980).

39 JACOBUS TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 71 (1951). The best recent discussions of the antislavery constitutional theory that culminated in the Fourteenth Amendment’s ratification are Richard L. Aynes, On Misreading John Bingham And The Fourteenth Amendment, 103 YALE L.J. 57 (1993), and Rebecca E. Zietlow, Congressional Enforcement of Civil Rights And John Bingham’s Theory of Citizenship, 36 AKRON L. REV. 717 (2003).

40 See generally Randy Barnett, Was Slavery Unconstitutional Before The Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation, 28 PAC. L.J. 977 (1997); How-ard Jay Graham, The Early Antislavery Backgrounds of the Fourteenth Amendment(Part I), 1950 WIS. L. REV. 479; Howard Jay Graham, The Early Antislavery Backgrounds of the Fourteenth Amendment(Part II),1950 WIS. L. REV. 610; Louisa M. A. Heiny, Radical


The doctrine of paramount national citizenship had two com-ponents. First, Republicans41 believed that the whole people of the United States made up a single, sovereign nation, in contrast with states’ rights advocates, who held that sovereignty lay primarily with each individual state and that the federal government’s sover-eignty was only delegated by the states. Second, Republicans held that citizens’ natural and traditional common law rights apper-tained to their federal, and not to their state citizenship, while the states’ rights theory held that states enjoyed almost limitless power to define, protect, and limit individual rights.

1. NATIONAL, NOT STATE SOVEREIGNTY

The authors of the Fourteenth Amendment believed that either the Declaration of Independence or the Constitution itself had made the people of the United States into a single unified nation.42 Na-tional sovereignty, within the limits of the Constitution’s enumer-ated powers, therefore prevailed over the autonomy of states. This meant that states had no authority to secede from the union, but it also had important ramifications for federal protection of individual rights.

Republicans stood on sturdy ground in their view of national sovereignty. The most striking difference between the 1787 Consti-tution and the Articles of Confederation was that while the latter operated much like a treaty binding otherwise sovereign states, the former set out the framework of a government in the name of “the people of the United States.” These words in the Constitution’s pre-amble sparked a revealing exchange at the Richmond ratification convention, when Patrick Henry demanded to know “[w]ho au-thorized [the Constitutional Convention] to speak the language of We the people, instead of We, the States? States are the characteristics,

Abolitionist Influence on Federalism and the Fourteenth Amendment, 17 TEMP. POL. & CIV. RTS. L. REV. 155 (2007); TENBROEK, supra note 39.

41 I will use this term as shorthand for antislavery constitutionalists even though many of them were not members of the Republican Party as such; John Quincy Ad-ams, for example, died before the formal organization of that Party.

42 See generally AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 5–53 (2005); DANIEL FARBER, LINCOLN’S CONSTITUTION 26–91 (2003).


and the soul of a confederation.”43 James Madison coolly answered that this phrase reflected the most basic difference between the Constitution and the Articles. Under the Articles, Congress’s power was “derived from the dependent derivative authority of the legis-latures of the states,” while under the Constitution, federal author-ity “is derived from the superior power of the people.”44 The Con-stitution did not consolidate the states in every way, but once adopted, “it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.”45

Madison’s collaborator on The Federalist, Alexander Hamilton, made a similar point when he observed that the “great and radical vice” of the Articles of Confederation was that it only allowed Con-gress to legislate “for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES”46 and was therefore “a mere treaty, de-pendent on the good faith of the parties, and not a government; which is only another word for POLITICAL POWER AND SUPREMACY.”47 The 1787 Constitution would cure this defect by de-riving its authority directly from the people of the United States, acting as a unified, sovereign whole.

Madison, Hamilton, and other delegates had debated the matter of federal sovereignty at the Philadelphia convention. On June 19, 1787, Maryland’s Luther Martin told the Convention that he “consid-ered that the separation from Great Britain placed the thirteen states in a state of nature towards each other . . . that they [i.e., the states] entered into the Confederation on the footing of equality.”48 Martin believed that the states were politically independent units, each of which could choose whether or not to join a political union; later, he opposed ratification on the ground that “every thing which relates to the formation, the dissolution or the alteration of a federal government over States equally free, sovereign and independent is the peculiar

43 3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 22 (Jonathan Elliot ed., 1836) [hereinafter, DEBATES].

44 Id. at 94. 45 Id. 46 THE FEDERALIST No. 15, at 93 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 47 THE FEDERALIST No. 33, at 207 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 48 5 DEBATES, supra note 43, at 213.


province of the States in their sovereign or political capacity.”49 Uniting the whole people of America into a sovereign union was untenable in Martin’s eyes, and the derogation of state sovereignty intolerable.

Pennsylvania’s James Wilson disagreed. He answered Martin by saying that he “could not admit the doctrine that, when the colonies became independent of Great Britain, they became inde-pendent also of each other.”50 Citing the Declaration of Independ-ence, Wilson contended that “the United Colonies were declared to be free and independent states, and inferring, that they were inde-pendent, not individually, but unitedly, and that they were confeder-ated, as they were independent states.”51 And at the Pennsylvania ratification convention, Wilson reiterated the point. Sovereignty under the Constitution “depends upon the supreme authority of the people alone . . . [who] are the source of authority.”52 This national authority was “the rock on which this structure will stand.”53

Even many Anti-Federalists understood the Constitution as re-placing the Confederacy’s league of sovereignties with a central, national sovereignty. “Brutus,” for instance, opposed the Constitu-tion because “if it is ratified, [it] will not be a compact entered into by the States, in their corporate capacities, but an agreement of the people of the United States as one great body politic.” The federal union would not be “a union of states or bodies corporate,” but “a union of the people of the United States considered as one body.”54 Likewise, the “Federal Farmer” warned that “when the people [of each state] shall adopt the proposed[,] . . . it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the peo-ple of the United States.”55 And Patrick Henry acknowledged at the Richmond ratification convention that “[t]he question turns, sir, on that poor little thing—the expression, We, the people, instead of the

49 Luther Martin, The Genuine Information XII (Feb. 8, 1788), reprinted in 1 THE DEBATE ON THE CONSTITUTION 658 (Bernard Bailyn ed.,1993).

50 5 DEBATES, supra note 43, at 213. 51 Id. 52 2 DEBATES, supra note 43, at 444. 53 Id. 54 Brutus, “Brutus” XII, N.Y. J. (Feb. 7 & 14, 1788), reprinted in 2 THE DEBATE ON THE

CONSTITUTION, supra note 49, at 173–74. 55 Federal Farmer, Letter IV (Oct. 12, 1787), reprinted in 1 THE DEBATE ON THE

CONSTITUTION, supra note 49, at 275.


states, of America.”56 If the preamble had said “We, the states . . . this would be a confederation.”57 But “[i]t is otherwise.”58 The pre-amble signaled an “alarming transition, from a confederacy to a consolidated government.”59

Thus, at the time of ratification, there was a broad national con-sensus—a consensus that included the Constitution’s opponents—that the American people as a whole were sovereign, and that the federal government derived its limited powers directly from them, rather than acting as a coalition of sovereignties, as under the Arti-cles. Perhaps no intellectual of the post-ratification period articu-lated this consensus more consistently and eloquently than Chief Justice John Marshall, who observed in Gibbons v. Ogden60 that the Articles of Confederation created only “a league” of “allied sover-eigns,” but the Constitution “converted their league into a govern-ment,” causing “the whole character in which the States appear” to “under[go] a change.”61 Likewise, in McCulloch v. Maryland,62 Mar-shall wrote that the federal government “proceeds directly from the people . . . . It required not the affirmance, and could not be nega-tived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sover-eignties.”63

It was not until years later, under the influence first of Thomas Jefferson’s 1798 Kentucky Resolutions and then John C. Calhoun’s philippics in the Nullification Crisis of the 1830s, that southern politi-cal leaders contrived a states’ rights constitutional theory, arguing

56 3 DEBATES, supra note 43, at 44. 57 Id. 58 Id. 59 Id. 60 22 U.S. (9 Wheat.) 1 (1824). 61 Id. at 187; see also Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 470 (1793) (opinion of

Jay, C.J.,) (“the people, in their collective and national capacity, established the pre-sent Constitution”).

62 17 U.S. (4 Wheat.) 316 (1819). 63 Id. at 403–04. Justice Kennedy’s words almost two centuries later are apt: “The

Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal…each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).


that, notwithstanding the prior consensus, the United States was only a league of sovereignties instead of a unified nation.64 Jefferson, writ-ing anonymously, made this argument explicitly, contending that “to this compact [i.e., the Constitution] each State acceded as a State, and is an integral party,” so that each state “has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”65

States’ rights spokesmen argued that, upon separation from Great Britain in 1776, the states became “distinct, independent, and sovereign communities,”66 and thus the basic sovereign units in the American fed-eration of states. Upon declaring independence, sovereignty was trans-ferred not from Parliament to the American union, as the Nationalists contended, but from Parliament to each separate state. Those states then ceded some power to the federal government by joining the union, but they remained principals of which the federal government was the agent,67 and therefore enjoyed unrestricted power to define and to limit citizenship, and with it the sphere of individual freedom.68 It was “a great and dangerous error to suppose that all people are equally entitled to liberty,” wrote John C. Calhoun, the most famous of the states’ rights theorists.69 Instead, states gave people liberty as “a reward reserved for the intelligent, the patriotic, the virtuous and deserving.” 70 And it seemed to follow that if states retained their essentially sovereign charac-ter, as principals superior to the union, with power to dictate the nature of citizenship and expand or contract rights, then they must also have the power to secede from the union to defend their autonomy.71

64 See generally WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN SOUTH CAROLINA, 1816–1836 (1965); MANISHA SINHA, THE COUNTERREVOLUTION OF SLAVERY: POLITICS AND IDEOLOGY IN ANTEBELLUM SOUTH CAROLINA (2000); Timothy Sandefur, How Libertarians Ought to Think About The U.S. Civil War, 28 REASON PAPERS 61 (2006).

65 Thomas Jefferson, Draft of the Kentucky Resolutions (1798), in THOMAS JEFFERSON: WRITINGS, 449, 449 (Merrill D. Peterson ed., 1984).

66 John C. Calhoun, A Discourse on The Constitution And Government of The United States, in UNION AND LIBERTY: THE POLITICAL PHILOSOPHY OF JOHN C. CALHOUN 79, 86 (Ross M. Lence ed., Liberty Fund 1992).

67 FARBER, supra note 42, at 34. 68 See John C. Calhoun, Speech on the Revenue Collection [Force] Bill (Feb. 15–16,

1833), in UNION AND LIBERTY, supra note 66, at 401, 443–44. 69 John C. Calhoun, A Disquisition on Government, in UNION AND LIBERTY, supra

note 66, at 42. 70 Id. 71 See AMAR, supra note 42, at 38–53; FREEHLING, supra note 64, at 165–66.


Among the most eloquent opponents of this states’ rights the-ory was Massachusetts Senator Daniel Webster, who in his famous 1830 debate with South Carolina Senator Robert Hayne, argued that federal authority was “not the creature of the State governments,”72 as states’ rights theorists ingeniously argued; it was instead “made for the people, made by the people, and answerable to the peo-ple.” 73 Although Webster did not emphasize the point, he also hinted at the implications of national sovereignty when he observed that, “if the whole truth must be told,” the American people had created the federal government “for the very purpose, amongst oth-ers, of imposing certain salutary restraints on State sovereignties.”74

Webster’s argument became a classic of American oratory, but it did not convince Hayne and his fellow states’ rights theorists. Hayne continued to argue that states enjoyed “the right to the fullest extent, of determining the limits of their own powers,” a right that was “full and complete,” indeed, “plenary.”75 In 1832, when South Carolina issued its Ordinance of Nullification, it emphasized the most extreme form of the states’ rights theory when it insisted that the states enjoyed “‘irre-sistible, absolute, uncontrolled authority,’” “absolute control ‘over the lives, liberties, and properties of the people, and the internal order, im-provement, and prosperity of the States.’” Indeed, it claimed that states had “the inherent power, to do all those acts, which by the law of na-tions, any Prince or Potentate may of right do” and could not “suffer any other restraint upon her sovereign will and pleasure, than those high moral obligations, under which all Princes and States are bound, before God and man, to perform their solemn pledges.”76

2. LIMITS ON SOVEREIGNTY

As this language of “plenary” authority suggests, there was a sec-ond, closely related component to the dispute between Republicans and states’ rights theorists. They differed not only over the location, but

72 THE WEBSTER-HAYNE DEBATE ON THE NATURE OF THE UNION 136 (Herman Belz ed., 2000) [hereinafter THE WEBSTER-HAYNE DEBATE].

73 Id. at 126. 74 Id. at 136. 75 Id. at 174–75. 76 Address to the People of South Carolina, by their Delegates in Convention

(1832), reprinted in STATE PAPERS ON NULLIFICATION 37, 40–43 (1834).


also over the nature and limits of sovereignty. In the 1830s, as part of his efforts against Calhoun and other states’ rights advocates,77 the elderly James Madison composed an essay on sovereignty arguing that how-ever the term might be defined, it could not justly penetrate the boundaries of the individual’s natural rights: “the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for exam-ple) in becoming parties to the original compact being beyond the le-gitimate reach of sovereignty, wherever vested or however viewed.”78 As the Declaration of Independence held, natural rights limited the power of any just sovereign.

Even more influential than Madison during these years—and a pivotal figure in the history of American constitutional law—was Congressman and former President John Quincy Adams. Like Madison, Adams believed that no legitimate sovereign could claim authority to intrude on natural rights, and this meant that state au-thority was also limited by the principles of justice articulated in the Declaration of Independence. In his 1848 pamphlet, The Jubilee of The Constitution, Adams emphasized that Americans’ rights were pro-tected not because they were citizens of states as such, but because they were Americans.79 Because the colonies declared independence collectively, Adams contended,80 whatever legitimate authority Par-liament formerly possessed over American subjects—and whatever responsibility it had for their common law and natural rights—was transferred to the union, and not to individual states:

Independence was declared. The colonies were trans-formed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British

77 Madison’s heroic struggle against Calhoun and his allies is described in Drew McCoy’s outstanding book, THE LAST OF THE FATHERS: JAMES MADISON AND THE REPUBLICAN LEGACY (1989).

78 James Madison, Sovereignty (1835), in 9 WRITINGS OF JAMES MADISON 568, 570–71 (Gaillard Hunt ed., 1910).

79 The Jubilee of The Constitution was one of the most popular publications of the era, selling more than 8,000 copies in a matter of weeks. See PAUL C. NAGEL, JOHN QUINCY ADAMS: A PUBLIC LIFE, A PRIVATE LIFE 372 (1997).

80 JOHN QUINCY ADAMS, THE JUBILEE OF THE CONSTITUTION 20 (1839).


crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their char-ter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.81 For Adams, the Declaration was not merely a statement of po-

litical rhetoric, but part of the binding, organic law of the United States; its legal effect was not only to separate the American nation from the British nation, but also to set limits on the powers of the state and national governments.82 American national identity was therefore conjoined with protections for individual rights. The southerners’ argument for state sovereignty, Adams held, was based on a fallacy inherited from William Blackstone, “that sover-eign must necessarily be uncontrollable, unlimited, despotic

81 Id. at 9. 82 See generally id. The thesis of The Jubilee of the Constitution, in fact, is that the Dec-

laration of Independence is law, a point taken up by many other Republicans in the years leading up to the Civil War and the ratification of the Constitution. Compare Abraham Lincoln, Speech at Chicago, Ill. (July 10, 1858), reprinted in JOSEPH H. BARRETT, LIFE OF ABRAHAM LINCOLN 167 (1864) (“I should like to know, if taking this old Declaration of Independence, which declares that all men are equal upon princi-ple, and making exceptions to it, where will you stop? . . . If that declaration is not the truth, let us get the statute book, in which we find it, and tear it out! Who is so bold as to do it! If it is not true, let us tear it out!” (emphasis added)), with John C. Calhoun, Speech on the Oregon Bill (June 27, 1848), in UNION AND LIBERTY, supra note 66, at 565–66 (“there is not a word of truth in [the Declaration] . . . . All men are not created. According to the Bible, only two, a man and a woman, ever were, and of these one was pronounced subordinate to the other.”). I discuss the role of the Declaration of Independence in constitutional interpretation in Timothy Sandefur, Liberal Original-ism: A Past for The Future, 27 HARV. J.L. & PUB. POL’Y 489 (2003). Professor Lee Strang has recently contended that the Declaration of Independence is “not the ‘interpretive key’ to the Constitution because of the inconsistencies between the two documents, and because the Declaration cannot provide sufficient interpretive guidance,” Lee J. Strang, Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?, 111 PENN ST. L. REV. 413, 479 (2006), but as I hope to show here, the Declaration is indispensable when interpreting certain constitutional provisions, and particularly the Fourteenth Amendment, which was drafted with the specific intent of constitutionalizing a particular interpretation of the Constitution explicitly rooted in the Declaration’s national doctrine of sovereignty and liberal doctrine of rights.


power.”83 But as far as the American polity was concerned, this was a “hallucination,”84 because “sovereignty, thus defined, is in direct contradiction to the Declaration of Independence, and incompatible with the nature of our institutions.”85 The states’ rights doctrines circulating in the 1830s would, if they prevailed, render the Declara-tion “a philosophical dream” and allow “uncontrolled, despotic sovereignties” to “trample with impunity, through a long career of after ages, at interminable or exterminating war with one another, upon the indefeasible and unalienable rights of man.”86 Adams thus took literally Daniel Webster’s famous phrase, “Liberty and Union . . . one and inseparable!”87 Political union and protection for indi-vidual liberty really were inseparable.

Adams’s influence on the rising generation of antislavery politi-cians and lawyers was crucial. William Seward, who published the first biography of Adams,88 would become the leading antislavery candidate for president before ending up Secretary of State in the Lincoln Administration. Charles Sumner, Adams’s leading pro-tégé,89 became the greatest of all antislavery political leaders. And Abraham Lincoln, a Whig who served with Adams in Congress and was a devotee of his constitutional writings, became the President who presided over union victory in the Civil War.90 Like Adams, they believed that the Declaration of Independence had created the American nation, a nation which superseded state autonomy in its powers and in its definition of citizenship, and that all Americans

83 JOHN QUINCY ADAMS, AN ORATION ADDRESSED TO THE CITIZENS OF THE TOWN OF QUINCY ON THE FOURTH OF JULY, 1831, THE FIFTY-FIFTH ANNIVERSARY OF THE INDEPENDENCE OF THE UNITED STATES OF AMERICA 22 (1831). Adams is referring to Blackstone’s definition of sovereignty as “supreme, irresistible, absolute, uncon-trolled authority,” which could “do every thing that is not naturally impossible,” and which “must, in all governments, reside somewhere.” WILLIAM BLACKSTONE, 1 COMMENTARIES *49, *156.

84 ADAMS, supra note 83, at 23. 85 Id. at 35. 86 Id. at 37. 87 THE WEBSTER-HAYNE DEBATE, supra note 72, at 144. 88 See JOHN M. TAYLOR, WILLIAM HENRY SEWARD: LINCOLN’S RIGHT HAND 69–70

(1991). 89 See DAVID HERBERT DONALD, CHARLES SUMNER AND THE COMING OF THE CIVIL

WAR 152–53 (1960). 90 See WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE

UNITED STATES CONGRESS 378, 448–49 (1996).


were entitled by their membership in that body politic to protection of their common law and natural rights.

3. REPUBLICAN AND STATES’ RIGHTS THEORIES OF FEDERAL PROTEC-TIONS FOR RIGHTS

The 1787 Constitution, wrote Charles Sumner during the war, “was framed to remove difficulties arising from State Rights.”91 The Constitution recognized “but one sovereignty,” and that was the sovereignty of the nation. States retained “that specific local control which is essential to the convenience and business of life,” but the United States “as Plural Unit” held “that commanding sovereignty which embraces and holds the whole country within its perpetual and irreversible jurisdiction.”92 States’ authority was subordinate “[c]onstantly, and in everything.”93 This predominant federal sov-ereignty brought with it the power to protect the rights of federal citizens: “As Congress has the exclusive power to establish ‘an uni-form rule of naturalization,’” and therefore to “secure for its newly entitled citizens [i.e., former slaves] ‘all privileges and immunities of citizens in the several States,’ in defiance of State Rights.”94

Sumner reiterated these arguments after the war in speeches supporting the Supplementary Civil Rights Act.95 The Declaration of Independence “speaks of ‘all men,’ and not of ‘all white men’; and the Constitution says, ‘We the people,’ and not ‘We the white people.’”96 States therefore have no authority to discriminate against racial mi-norities; “the whole pretension is a disgusting usurpation.”97 Without

91 Charles Sumner, Our Domestic Relations: Power of Congress over the Rebel States, 12 ATLANTIC MONTHLY 507 (Oct. 1863), reprinted in 7 THE WORKS OF CHARLES SUMNER 493, 507 (1873).

92 Id. at 508. 93 Id. at 513. 94 Id. at 514. Sumner was quoting, of course, the Article IV Privileges and Immuni-

ties Clause. U.S. CONST. art. IV, § 2, cl. 1. 95 Eventually enacted in revised version as the Civil Rights Act of 1875, 18 Stat. 335

(1875) and invalidated in the Civil Rights Cases, 109 U.S. 3 (1883). 96 Charles Sumner, Equality Before the Law Protected by National Statute,

Speeches in the Senate on his Supplementary Civil Rights Bill, as an Amendment to the Amnesty Bill (Jan. 15, 17, 31, Feb. 5, & May 21, 1872), in 14 THE WORKS OF CHARLES SUMNER 355, 401 (1883); See also U.S. CONST. pmbl.; THE DECLARATION OF INDEPENDENCE , 1 Stat. 1 (1776).

97 Sumner, supra note 96, at 402.


such authority, “[e]quality is ‘the supreme law of the land; and the judges in every State shall be bound thereby, anything in the consti-tution or laws of any State to the contrary notwithstanding.’”98 Since the word “white” did not appear in the Declaration or the Constitu-tion—“our two title-deeds of Constitutional liberty”99—it could have no legitimate operation in state or federal law. “Every statute and all legislation, whether National or State, must be in complete confor-mity with the two title-deeds. . . . Strange indeed, if an odious dis-crimination, without support in the original Common Law or the Constitution, and openly condemned by the Declaration of Inde-pendence, can escape judgment by skulking within State lines!”100 Former slaves deserved to be recognized as fellow citizens, and with that federal citizenship came protection of common law and natural rights that belonged to all federal citizens:

No longer an African, he is an American; no longer a slave, he is a common part of the Republic, owing to it patriotic al-legiance in return for the protection of equal laws. By incor-poration within the body-politic he becomes a partner in that transcendent unity, so that there can be no injury to him without injury to all. Insult to him is insult to an American citizen. Dishonor to him is dishonor to the Republic itself. . . . Our rights are his rights; our equality is his equality; our privileges and immunities are his great freehold.101 Before the War, other antebellum lawyers and intellectuals, includ-

ing Lysander Spooner,102 William Goodell,103 Beriah Green,104 Gerrit

98 Id. 99 Id. at 406. 100 Id. 101 Id. at 407 (emphasis added). 102 See generally LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY

(1860). 103 See generally WILLIAM GOODELL, SLAVERY AND ANTI-SLAVERY: A HISTORY OF THE

GREAT STRUGGLE IN BOTH HEMISPHERES WITH A VIEW OF THE SLAVERY QUESTION IN THE UNITED STATES (1852).

104 See generally BERIAH GREEN, THE CHATTEL PRINCIPLE: THE ABHORRENCE OF JESUS CHRIST AND THE APOSTLES; OR, NO REFUGE FOR AMERICAN SLAVERY IN THE NEW TESTAMENT (1839).


Smith,105 Joel Tiffany,106 and Frederick Douglass,107 had formulated an even more thorough antislavery Constitutional theory, arguing that slavery was already unconstitutional.108 They began with the proposi-tion that, in Douglass’s words, “the Constitution knows all the human inhabitants of this country as ‘the people,’”109 and that black slaves were therefore citizens just like free whites.110 Because the Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law, laws supporting slavery—which provided no process of law whatsoever—must be unconstitutional.111 The notion that the Constitution’s authors intended its protections to apply only to whites, Douglass said, “is Judge Taney’s argument, and it is Mr. Garri-son’s argument, but it is not the argument of the Constitution. The Con-stitution imposes no such mean and satanic limitations upon its own beneficent operation.”112 Federal citizenship entitled slaves, along with everyone else, to protection for their natural and common law rights.

105 See generally GERRIT SMITH, LETTER OF GERRIT SMITH, TO HON. HENRY CLAY (1839).

106 See generally JOEL TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF AMERICAN SLAVERY: TOGETHER WITH THE POWERS AND DUTIES OF THE FEDERAL GOVERNMENT IN RELATION TO THAT SUBJECT (1849).

107 See generally Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Antislavery? (March 26, 1860), in FREDERICK DOUGLASS: SELECTED SPEECHES AND WRITINGS 380 (Philip S. Foner & Yuval Taylor eds., 1999).

108 See Barnett, supra note 37. 109 Frederick Douglass, The Dred Scott Decision, Speech Before the American Anti-

Slavery Society (May 14, 1857), in FREDERICK DOUGLASS: SELECTED SPEECHES AND WRITINGS, supra note 107, at 357; see also SPOONER, supra note 102, at 188 (“[T]here is no legal ground for denying that the terms ‘the people of the United States,’ included the whole of the then people of the United States. And if the whole of the people are parties to it, it must, if possible, be so construed as to make it such a contract as each and every individual might reasonably agree to.”).

110 See SPOONER, supra note 102, at 101 (arguing slaves were citizens). 111 See Charles Sumner, Freedom National; Slavery Sectional,Speech in the U.S.

Senate on His Motion for the Repeal of the Fugitive Slave Bill 52–53 (Aug. 26,1852) (Buell & Blanchard 1852).

112 Douglass, supra note 109, at 357. Although Douglass began his abolitionist career under Garrison’s tutelage, they split over the latter’s belief that the Constitution was a pro-slavery document and therefore corrupt. See HENRY MAYER, ALL ON FIRE: WILLIAM LLOYD GARRISON AND THE ABOLITION OF SLAVERY 428 (1998); WILLIAM S. MCFEELY, FREDERICK DOUGLASS 168–69 (1991). Most writers who have addressed this schism have regarded Douglass’s arguments as weak or even disingenuous—unfairly, in my view. See, e.g., MAYER, supra, at 429 (describing Douglass’s embrace of antislavery constitu-tionalism as “pragmatic” and “chimerical”). So far as I know, only Peter C. Myers and


Among the most penetrating of the antislavery constitutionalists was Joel Tiffany, who in his 1867 Treatise on Government, quoted Daniel Webster’s argument about sovereignty from his debate with Robert Hayne, adding that “[s]overeignty, as an attribute of the peo-ple of the United States as a nation, excludes the like sovereignty of the people of a single State, as State citizens merely. Hence, the au-thority of a citizen as a constituent of the nation, is superior to his authority as a constituent of a mere State or territory.”113 Neither state nor national sovereignty could include the power to override funda-mental natural rights: society “must establish its foundations in natu-ral justice,” and “permit no necessary liberty or right of the individ-ual to be abridged.”114 A legitimate government “cannot restrain its subjects, as such, in the exercise of any individual right” or have any authority “not essentially in harmony with the rights of its individual members.”115 The American nation, “in virtue of its inherent sover-eignty, has ordained and established a constitutional government, which in its authority, as the representative of the nation, is supreme over all.” Thus, every citizen of a state is “also a citizen of the nation” and “has national rights” that states must respect.116

Republican thinkers did not always agree on the details—Sumner, for example, did not contend that slaves were citizens117—but their basic doctrine was clear: federal authority trumped that of states, and states had no power to violate the fundamental principles of the American regime, as articulated in the Declaration of Inde-pendence. As John Quincy Adams put it, the Declaration “proclaims the natural rights of man, and the constituent power of the people to be the only sources of legitimate government. State sovereignty is . . . a mere reproduction of the omnipotence of the British parliament in

James A. Colaiaco in their outstanding works have even attempted a fair and thorough discussion of Douglass’s constitutional views. See PETER C. MYERS, FREDERICK DOUGLASS: RACE AND THE REBIRTH OF AMERICAN LIBERALISM 83–109 ( 2008), and JAMES A. COLAIACO, FREDERICK DOUGLASS AND THE FOURTH OF JULY 163–87 (2006).

113 JOEL TIFFANY, A TREATISE ON GOVERNMENT, AND CONSTITUTIONAL LAW, BEING AN INQUIRY INTO THE SOURCE AND LIMITATION OF GOVERNMENTAL AUTHORITY, ACCORDING TO THE AMERICAN THEORY 50–51 (1867). Charles Sumner’s personal copy of this book is in the Widener Library at Harvard University.

114 Id. at 26. 115 Id. at 27. 116 Id. at 372. 117 Sumner, supra note 96, at 409.


another form, and therefore not only inconsistent with, but directly in opposition to, the principles of the Declaration of Independence.”118

By contrast, advocates of the states’ rights view held that states were both the locus of American sovereignty and the entities re-sponsible for defining and guaranteeing individual rights. One rep-resentative example of this approach was the 1853 decision of the Supreme Court of Pennsylvania in Sharpless v. Mayor of Philadel-phia.119 When the United States declared itself independent of Brit-ain, the Court explained, “[t]he transcendant [sic] powers of Parlia-ment” were transferred to the states, who therefore enjoyed “su-preme and unlimited” power.120 Thus, “[i]f the people of Pennsyl-vania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat.” 121 Although the Court conceded that the states had “delegated a portion” of their allegedly limitless power to the fed-eral government,122 he concluded that state legislatures retained “a

118 ADAMS, supra note 80, at 30. 119 21 Pa. 147 (1853). Sharpless is among the most fascinating of antebellum consti-

tutional decisions. It illustrates the debate over the limits of sovereignty that echoed through American legal history up until the outbreak of the war. See TIMOTHY SANDEFUR, CORNERSTONE OF LIBERTY: PROPERTY RIGHTS IN 21ST CENTURY AMERICA 64–67 (2006). The earliest and clearest example of this can be found in the debate between Justices Iredell and Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), as well as between the majority decision in Sharpless and the dissenters, see Sharpless v. Mayor of Philadelphia, 2 AM. L. REG. 80, 85 (Pa. 1854) (Lewis, J., dissenting); Shar-pless v. Mayor of Philadelphia, 2 AM. L. REG. 27, 29 (Pa. 1854) (Lowrie, J., dissenting), and in the debate between Justices Murray and Terry in Billings v. Hall, 7 Cal. 1 (1857). See also Ellis L. Waldron, Sharpless v. Philadelphia: Jeremiah Black And The Parent Case on The Public Purpose of Taxation, 1953 WIS. L. REV. 48.

120 Sharpless, 21 Pa. at 160. 121 Id. Justice Ellis Lewis, dissenting, rejected this position: “There is . . . no founda-

tion whatever for the doctrine that the Legislature of the State possesses all the powers of sovereignty not expressly withheld from them. This notion is occasionally asserted by men who are not careful to distinguish between our FREE and LIMITED governments DERIVED FROM THE PEOPLE, and established by written constitutions, and those abso-lute despotisms of the old world, which have their foundations in secret fraud or open force, with no limitations of power except the arbitrary will of usurping tyrants. . . . The State . . . has no more right to abandon the liberty and prosperity of any por-tion of her citizens to the will of others than she would have to transfer them to a Russian or an Austrian Despot.” Sharpless, 2 AM. L. REG. at 87, 97 (Lewis, J., dissent-ing).

122 Sharpless, 21 Pa. at 160.


vast field of power . . . full and uncontrolled,” and that “[t]heir use of [that power] can be limited only by their own discretion.”123 States were therefore free to “do whatever is not prohibited.”124

The author of the Sharpless opinion was Jeremiah Sullivan Black, who left his seat as Pennsylvania’s Chief Justice when he was appointed Attorney General by his fellow Pennsylvanian dough-face, 125 James Buchanan. As Attorney General, he reiterated his states’ rights position in an article criticizing the views of Senator Stephen Douglas. “Sovereignty” wrote Black, “is in its nature irre-sponsible and absolute . . . . Mere moral abstractions or theoretic principles of natural justice do not limit the legal authority of a sov-ereign. No government ought to violate justice; but any supreme government, whose hands are entirely free, can violate it with im-punity.”126 After the war, he continued to argue that the states “were sovereign before they united,” and that they gave the federal government its “national character . . . reserv[ing] to themselves all the sovereign rights not granted in the [Constitution].”127 The no-tion that national citizenship was paramount to state citizenship and that states could not trample on natural or common-law rights, was “inserted in the creed of the abolitionists because they sup-posed it would give a sort of plausibility to their violent interven-tion with the internal affairs of the states.”128

123 Id. at 161. In fact, Black contradicted himself on this point. Contrary to his asser-tion that states possessed “full and uncontrolled power” except where specifically denied by the state constitution, Black accepted the existence of unwritten limits on state power: “The whole of a public burden cannot be thrown on a single individual, under the pretence of taxing him,” for example, even though no written provision of the Constitution forbids this; such a prohibition “was not necessary,” because such a legislative act “would not be a law, but an attempt to pronounce a judicial sentence, order or decree.” Id. at 168. This, as Waldron observes, is the theory later called “sub-stantive due process.” Waldron, supra note 119, at 75. Black did not seem to recog-nize his self-contradiction. Id. at 64.

124 Sharpless, 21 Pa. at 160. 125 “Doughface” was a nineteenth century slang term for “northern men of south-

ern principles”—i.e., Yankee defenders of slavery and states’ rights. 126 JEREMIAH S. BLACK, OBSERVATIONS ON SENATOR DOUGLAS’S VIEWS OF POPULAR

SOVEREIGNTY, AS EXPRESSED IN HARPER’S MAGAZINE, FOR SEPTEMBER, 1859 at 18 (2d ed. 1859).

127 Open letter from Jeremiah S. Black to Hon. James A. Garfield, in ESSAYS AND SPEECHES OF JEREMIAH S. BLACK, 292 300–01 (Chauncey F. Black ed., 1886).

128 Id. at 301.


After the war, Black’s hostility to the principle of paramount national citizenship, and to federal efforts to enforce that doctrine through civil-rights legislation, led him into a personal crusade against Reconstruction. He viewed military occupation of the South as a travesty on par with the English occupation of Ireland or the Russian occupation of Poland129 and considered Reconstruction re-sponsible for “[t]he infamous combination of Yankee and negro thieves who now have the government of the Southern States in their hands.”130 Indeed, as advisor to President Andrew Johnson, Black drafted the veto of the 1867 Reconstruction Act,131 and after that veto was overridden, devoted his considerable legal talents to defeating federal civil rights laws in court.132 He challenged the constitutionality of civil rights legislation in Ex Parte McCardle,133 Ex Parte Milligan,134 and Bylew v. United States,135 and helped defend Johnson at his impeachment trial.136

Thus when he was asked to represent the state of Louisiana in the Slaughter-House Cases, Jeremiah Black saw a unique opportunity to attack Reconstruction. As his fawning biographer acknowledged, the Fourteenth Amendment had “[u]ndeniably” been “written with the deliberate intention to nationalize all civil rights, [and] to make Federal power supreme over the States.” But Black sought a way to evade the provision: “suppose the Supreme Court should rule that the slaughterhouse dealers of Louisiana could secure no redress under this Amendment? The effect of such a decision would be a lasting thing, cutting out bodily this part of the Amendment. It would smash the intent of the Radicals.”137 A Supreme Court deci-sion fatally undercutting the Amendment’s strength “would leave

129 See, e.g., id. at 299. 130.Letter from Jeremiah S. Black in reply to the Hon. Charles Francis Adams, Sr.:

The Character of Mr. Seward, in ESSAYS AND SPEECHES, supra note 127, at 134, 147. 131 Waldron, supra note 119, at 55. 132 MARY BLACK CLAYTON, REMINISCENSES OF JEREMIAH SULLIVAN BLACK 128

(1887). 133 74 U.S. (7 Wall.) 506 (1868); see also WILLIAM NORWOOD BRIGANCE, JEREMIAH

SULLIVAN BLACK: A DEFENDER OF THE CONSTITUTION AND THE TEN COMMANDMENTS 171–79 (Wallace D. Fardham ed., Da Capo Press 1971) (1934).

134 71 U.S. (4 Wall.) 2 (1866); see also BRIGANCE, supra note 133, at 145–57. 135 80 U.S. (13 Wall.) 581 (1871); see also BRIGANCE, supra note 133, at 198–200. 136 BRIGANCE, supra note 133, at 180–96. 137 Id. at 200–01.


Louisiana free to deal with Carpetbaggers in her own way as soon as military force should be removed.”138

B. Paramount National Citizenship and the Privileges or Immunities Clause

The states’ rights theory that Black would articulate on behalf of Louisiana in 1872 was the opposite of the doctrine of paramount na-tional citizenship; indeed, it was precisely the states’ rights theory that Republicans sought to repudiate in 1868 when they drafted the Fourteenth Amendment. Republicans did not believe that they were changing the Constitution so much as rescuing it from the miscon-struction of states’ rights theorists and the Taney Court. A decade before he wrote the Privileges or Immunities Clause, Congressman John Bingham had explained his “belie[f] that the rights of citizenship had a national character.”139 States, he told Congress, had no author-ity to “restrict the humblest citizen of the United States in the free exercise of any one of his natural rights; those rights common to all men, and to protect which, not to confer, all good governments are instituted.” 140 Indeed, he believed that if states did violate these rights, the people had “sufficient cause” for the “reconstruction of the political fabric on a juster basis, and with surer safeguards.”141 Now, with the end of the War, Bingham and his allies would make good that reconstruction, adding surer federal safeguards for those natural and common law rights to which all persons were entitled by virtue of their participation in the American body politic.

The amendment they drafted would permanently settle the dis-puted understanding of the federal-state relationship and of national protections for the rights of American citizens.142 It would, in Bing-ham’s words, “take[] from no State any right that ever pertained to it,” because “[n]o State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or

138 Id. at 201. 139 Zietlow, supra note 39, at 722. 140 CONG. GLOBE, 35th Cong., 2d Sess. 985 (1859) (statement of Rep. John Bing-

ham). 141 Id. 142 TENBROEK, supra note 39, at 72 (the Fourteenth Amendment “fit and encom-

pass[ed] the basic nationalistic implications of the abolitionist movement.”).


to abridge the privileges or immunities of any citizen of the Repub-lic.”143 States had often done so anyway, leading to “flagrant viola-tions of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever.”144 But the new amendment would provide that remedy, by furnishing the federal government “power . . . to pro-tect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its juris-diction whenever the same shall be abridged or denied by the uncon-stitutional acts of any State.”145 Unsurprisingly, Bingham and his fel-low Republicans tended to reject Barron v. Baltimore.146 As Professor Amar notes, these “Barron contrarians” believed that the 1789 Bill of Rights did or should restrict the power of the states,147 and they in-tended the Amendment to overturn Barron so as to provide federal protection against state actions that deprived individuals of their natural and civil rights.148 This, Bingham believed, would permit “the speedy restoration to their constitutional relations of the late insurrec-tionary States, under such perpetual guarantees as will guard the future of the Republic by the united voice of a united people.”149

Republicans therefore shared a vision of the Constitution rooted in the Declaration of Independence. From it, they derived their inter-related conceptions of national sovereignty and of the moral limits on political authority.150 The “one people” in whose name the Declara-tion had been issued had pledged their belief in the “self-evident truths” it articulated. The country’s national identity was therefore inseparable from its political doctrines. They believed this to be the philosophical foundation of the American Constitution even before the Civil War, and in the Fourteenth Amendment, they hoped to clar-ify what they believed to already be the nation’s highest law. They

143 CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement of Rep. John Bing-ham).

144 Id. 145 Id. 146 32 U.S. (7 Pet.) 243 (1833). 147 AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 148–

49 (1998). 148 MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE 83 (1986). 149 CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (statement of Rep. John Bing-

ham). 150 Shankman & Pilon, supra note 36, at 24.


asserted that Americans were Americans first and citizens of states only second. Citizens’ rights were vested by virtue of their national, rather than their state citizenship just as the Revolution transferred sovereignty from the crown to the nation as a whole. This theory was hotly disputed throughout the early nineteenth century, but Republi-cans expected the Fourteenth Amendment to settle that dispute.

The structure of the Amendment’s first section testifies to this in-tent. It begins by defining American citizenship, a matter on which the original Constitution was silent,151 and then proclaims that national citizenship is primary, and state citizenship is secondary and deriva-tive; persons to whom it applies “are citizens of the United States and of the State wherein they reside.” The next clause then asserts that states shall not make or enforce laws that abridge the rights appertain-ing to federal citizenship. The Privileges or Immunities Clause was “the primary vehicle through which [the Amendment’s Framers] in-tended to force the states to obey the commands of the bill of rights.”152 But the premise on which the Amendment’s authors based that effort was their belief that the American Revolution had transferred sover-eign power from Parliament to the American nation and not to the in-dividual states—and at the same time, limited that power in confor-mity with individual natural rights. In this sense, then, the Fourteenth Amendment provides not only substantive guarantees, but also a rule of construction, much like the Ninth Amendment. Where the Ninth Amendment instructs us not to construe the list of specified rights as exclusive, the Fourteenth Amendment instructs us how to interpret the federal-state relationship and the nature of American citizenship.

C. Slaughter-House’s Errors

This background of political philosophy helps clarify the most fundamental error in Slaughter-House: the majority embraced the states’ rights theory of federalism and citizenship that the Fourteenth Amendment was expressly crafted to overturn. The Court denied that the Amendment was written for the purpose of “radically

151 AMAR, supra note 42, at 381. 152 CURTIS, supra note 148, at 130; see also Shankman & Pilon, supra note 36, at 25

(the Amendment’s authors “said repeatedly that the purpose of the amendment was not simply to define United States citizenship but to include under that privilege, for blacks and whites alike, a broad array of rights against state interference.”).


chang[ing] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people”153 when, as the legislative history shows, that was exactly the Amendment’s purpose: to constitutionalize the Republican theory of paramount national citizenship and the rights attendant to that citi-zenship.154

In its Slaughter-House brief, Louisiana argued that a ruling against the state “would break down the whole system of confederated State government” by curtailing state autonomy.155 The Slaughter-House majority echoed this concern when warning that enforcing a federal check on state autonomy would “degrade the State governments by

153 The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 78 (1872). 154 An intriguing parallel to what happened in Slaughter-House can be found in the

California Supreme Court decision People v. Brady, 40 Cal. 198 (1870). In an earlier case, Billings v. Hall, 7 Cal. 1 (1857), the California Supreme Court had rejected the notion of absolute state sovereignty such as articulated in the Sharpless decision, concluding that “the spirit of free institutions is at war” with the notion of unlimited state sovereignty, id. at 13, because “this [would be] to put themselves in a worse condition than a state of nature, wherein they had the liberty to defend their rights against the injuries of others . . . . [B]y supposing that they have given up themselves to the absolute, arbitrary power of the legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases.” Id. at 11–12. But in 1870, shortly before Slaughter-House was decided, the Court reversed itself. Echoing Shar-pless, the Court held that after declaring independence, “legislative power was . . . as complete in each American as in the British Parliament,” Brady at 219. “The Federal Government was created by the compact of sovereign States, and their continued existence in the uncontrolled exercise of their powers, is an essential element of the system,” the court continued. States enjoyed “[t]he absolute right of uncontrolled local legislation upon all subjects most intimately connected with individual rights and most essential to the maintenance of personal liberty . . . .” Id. at 220. And, as Slaughter-House would do three years later, the Brady court concluded that the Four-teenth Amendment was not “intended to strike from the Constitution the fundamen-tal idea upon which the Union was constructed—to rob the Government of its crowning glory and most beneficent principle.” Id. If the Amendment had meant to provide federal protections against the power of state governments, “we should regard it as we would a law apparently legalizing murder or robbery.” Id.

Another parallel between Slaughter-House and Brady is the effect each had on racial minorities. While Slaughter-House signaled a retreat from Reconstruction efforts to protect former slaves, Brady rejected a constitutional challenge to a state law that pro-hibited Chinese immigrants or Chinese Americans from testifying against whites in court. Being denied the chance to testify against whites meant that the Chinese had virtually no protection against violence from white mobs. See generally JEAN PFAELZER, DRIVEN OUT: THE FORGOTTEN WAR AGAINST CHINESE AMERICANS 52 (2007).

155 Brief of Defendants in Error at 15, Slaughter-House, 83 U.S. (16 Wall.) 36.


subjecting them to the control of Congress,” which it considered too “great a departure from the structure and spirit of our institutions.”156 But whatever validity these concerns might have, they were hardly a good reason for denying effect to constitutional language. As one contemporaneous critic of the decision wrote: “[i]f such was to be the effect of the [A]mendment, it was so because the American people had so decreed, and it was not the province of the court to defeat their will.”157 Moreover, the Slaughter-House Court’s concerns for fed-eralism were exaggerated. Legitimate state autonomy was not threat-ened by the Amendment’s change to federalism; the Amendment still left states with the bulk of routine government power. It simply re-quired states to exercise that power consistently with individual rights.158

The Court’s refusal to acknowledge that the Fourteenth Amendment constitutionalized the theory of paramount national citizenship led the Justices to their second error: limiting the list of rights that constitute the “privileges or immunities of citizens of the United States.” It is true that, as the Court observed, “there is a dif-ference between the privileges and immunities belonging to a citi-zen of the United States as such, and those belonging to the citizen of the State as such,” and that the Privileges or Immunities Clause protected “only the former.”159 But according to the majority, the rights attaching to federal citizenship included only the rights to travel to the seat of government; to demand federal protection on the high seas; to peaceably assemble for redress of grievances; to use navigable waters; to change one’s state of residence; and to “the rights secured by the thirteenth and fifteenth articles of amend-ment.”160 The list did not include such other common law rights as the right to pursue a gainful occupation free from the interference of state-imposed monopolies. The majority did not deny the legal existence of this right, supported by more than two centuries of

156 83 U.S. (16 Wall.) at 78. 157 William L. Royall, The Fourteenth Amendment: The Slaughter-House Cases, 4 S.L.

REV. 558, 579–80 (1879). 158 Id. at 40–41. 159 Slaughter-House, 83 U.S. (16 Wall.) at 74–75. 160 Id. at 79–80.


precedent at the time that Slaughter-House was decided,161 but it held that this right “belong[ed] to citizens of the States as such, and . . . [was] left to the State governments for security and protec-tion.”162 This was a reiteration of the states’ rights theory that, just as sovereignty was transferred in 1776 from Parliament to the indi-vidual states, common law protections for individual freedom also were the province of the states, and not the federal government.

The authors of the Fourteenth Amendment, however, believed all Americans possessed natural and common law rights by virtue of their federal citizenship and that the Amendment would protect all unenumerated individual rights.163 They frequently cited Corfield v. Coryell,164 the 1823 decision in which Justice Bushrod Washington defined the phrase “privileges or immunities” in broad terms of natural and common law rights belonging “of right, to the citizens of all free governments.”165 Corfield did not define the privileges or im-munities of state citizenship, but of federal citizenship, and four dec-ades later, Republicans cited it as the primary reference for defining the rights that would be protected by the Amendment.166 Senator Jacob Howard, for example, quoted from the decision when he ex-plained that the Privileges or Immunities Clause would provide for “‘protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety’” as well as “the personal

161 See id. at 65–66 (citing Darcy v. Allein (The Case of Monopolies), (1602) 77 Eng. Rep. 1260 (Q.B.)).

162 See id. at 78. 163 Senator John Sherman, for example, explained that the Privileges or Immunities

Clause would protect the “privileges, immunities, and rights (because I do not dis-tinguish between them, and cannot do it,) of citizens of the United States, such as are recognized by the common law, such as are ingrafted in the great charters of Eng-land, some of them ingrafted in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence.” Courts applying the clause would “look first at the Constitution,” and “[i]f that does not define the right they will look for the unenumerated powers [sic] to the Declaration of American Independence, to every scrap of American his-tory, to the history of England, to the common law of England . . . . There they will find the fountain and reservoir of the rights of American as well as of English citi-zens.” CONG. GLOBE, 42d Cong., 2d Sess. 844 (1872).

164 6 F.Cas. 546, 551–52 (C.C. Pa. 1823). 165 Id. at 551. 166 AMAR, supra note 42, at 176–80; CURTIS, supra note 148, at 168.


rights guarantied and secured by the first eight amendments of the Constitution.”167 The new Privileges or Immunities Clause, like the Article IV clause interpreted in Corfield, would protect natural and common law rights precisely because they were attendant upon fed-eral, not state citizenship.168

The Slaughter-House majority referred to none of this history. In-stead, it resorted to a weak rhetorical question: “Was it the purpose of the fourteenth amendment . . . to transfer the security and protec-tion of all the civil rights which we have mentioned, from the States to the Federal government?”169 But the right answer to this question is yes. Justice Field, who never stopped reiterating his belief that Slaughter-House was wrongly decided,170 was right when he argued that the Fourteenth Amendment “recognized, if it did not create, a National citizenship” and “declared that their privileges and im-munities, which embrace the fundamental rights belonging to citi-zens of all free governments, should not be abridged by any State. This National citizenship is primary, and not secondary” and enti-tled all Americans—“or would do so if not shorn of its efficiency [sic] by construction”—to seek federal protection against the viola-tion of individual rights by their states of residence.171

If there were any doubt that the Court had washed its hands of the Republican theory of paramount national citizenship, the Court made it clearer two years later in Cruikshank,172 when it threw out federal prosecution of the perpetrators of the Colfax Massacre. Be-cause the victims had been peaceably assembling to protest griev-ances, as well as bearing arms and exercising other Bill of Rights freedoms, the officials were charged with depriving citizens of their federally guaranteed rights under the Privileges or Immunities Clause.173 But the Court rejected this argument. The right to petition

167 CONG. GLOBE 39th Cong., 1st Sess. 2765 (1866) (quoting Corfield, 6 F.Cas. at 551–52).

168 See also Sumner, supra note 96, at 386 (citing Corfield, 6 F.Cas. 546, in explaining the privileges or immunities of citizenship).

169 The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1872). 170 See, e.g., Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Cres-

cent City Live-Stock Landing & Slaughter-House Co., 111 U.S. 746, 756–59 (1884) (Field, J., concurring).

171 Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129, 140–41 (1873) (Field, J., concurring). 172 92 U.S. 542 (1875). 173 See generally CHARLES LANE, THE DAY FREEDOM DIED (2008).


Congress was “an attribute of national citizenship, and, as such, un-der the protection of, and guaranteed by, the United States,”174 but the right to assemble to petition state government was not such a right. Likewise, the right to bear arms, the Court concluded, “is not a right granted by the Constitution,” but a pre-existing common law right which is not “in any manner dependent upon [the Constitu-tion] for its existence.”175 It may be true that “[t]he rights of life and personal liberty are natural rights of man” and that “[t]he very highest duty of the States” is to protect such rights. 176 But “[s]overeignty, for this purpose, rests alone with the States . . . . That duty was originally assumed by the States; and it still remains there.”177 Because the Court held, in accordance with the obsolete states’ rights theory, that most individual rights appertained to state, rather than national, citizenship, people seeking protection for that right “must look to the States.”178 Sadly, this meant that citizens were abandoned to the hands of the very state governments that were oppressing them—in direct contravention of the intent of the Fourteenth Amendment’s framers.179

Jeremiah Black’s victory in Slaughter-House warranted his niece’s assertion that “the modification and at length the practical abandonment” of Reconstruction “was in no small measure due to the merciless assaults of Judge Black . . . .”180 By withdrawing the

174 Cruikshank, 92 U.S. 542 at 552. 175 Id. at 553. 176 Id. 177 Id. at 553–55 178 Id. at 552. 179 Senator Howard, for example, specifically identified “the right of the people

peaceably to assemble and petition the Government for a redress of grievances” and “the right to keep and to bear arms” as rights protected under the privileges or im-munities clause. CONG. GLOBE, 39th Cong., 1st Sess. 2765 (1866).

180 CLAYTON, supra note 132, at 125. Labbé and Lurie, supra note 4, argue that the butchers’ attorney, John Campbell, exploited the case to advance an “agenda” attack-ing Reconstruction. Id. at 183. In their view, Campbell—a former United States Su-preme Court Justice who resigned his seat in 1861 to join the Confederate govern-ment—used the case to publicize the alleged corruption of the Louisiana legislature, and thereby attack integration. See id. at 192. This may indeed be part of the story. Compare Michael A. Ross, Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign against Louisiana’s Republican Government, 1868-1873, 49 CIV. WAR HIST. 235 (2003), with ROBERT SAUNDERS, JR., JOHN ARCHIBALD CAMPBELL, SOUTHERN MODERATE, 1811–1889 (1997). But we must not overlook Black’s efforts on the other


federal protection for individual rights that the Fourteenth Amendment had promised, the Slaughter-House decision “had a devastating effect on human rights under the Constitution. Our ba-sic liberties were placed at the mercy of state laws and state offi-cials.”181

III. THE RELATIONSHIP BETWEEN PRIVILEGES AND IMMUNITIES AND SUBSTANTIVE DUE PROCESS

A number of scholars and judges,182 including most notably Jus-tice Clarence Thomas,183 have claimed that the theory of substantive due process originated in response to Slaughter-House’s abandon-ment of the Privileges or Immunities Clause, and that restoring vi-tality to that clause would warrant eliminating the concept of sub-stantive due process. But this view is wrong on both theoretical and historical grounds. Substantive due process is a legitimate part of our constitutional law, one for which there is substantial theoretical

side. Portraying the legislature of Louisiana as corrupt, as counsel for the butchers did (and, again, with much plausibility) doubtless served the interests of Reconstruc-tion’s opponents, but neutering the most crucial part of the Fourteenth Amendment, as the state’s attorneys managed to do, served that purpose even more. Whatever Campbell’s motives in prosecuting the case against the Louisiana legislature, his inter-pretation of the Amendment was at least consistent with that of its framers. As one of his biographers wrote, Campbell “took a larger view of their purpose [i.e., the authors of the Fourteenth Amendment] and caught a larger vision of the scope of its accom-plishment. To his mind every person then within the jurisdiction of the United States and every child born, or person naturalized, was lifted, as it were, into the status of National citizenship, with the power of the National Government pledged to the pro-tection of his rights, privileges, and immunities, and every State prohibited from mak-ing or enforcing any law abridging such rights and privileges. The singular spectacle is presented of the States Rights, Southern Democratic lawyer urging the broadest, largest National view and the Northern-Nationalist Republican Judge enforcing a much nar-rower application of the language, in ascertaining the intention of those who framed the Amendment.” HENRY G. CONNOR, JOHN ARCHIBALD CAMPBELL 222–23 (1920).

181 Wilson R. Huhn, The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation, 42 AKRON L. REV. 1051, 1079 (2009).

182 See, e.g., Lutz v. City of York, 899 F.2d 255, 264 (3d Cir. 1990); Mitchell v. State, 659 N.E.2d 112, 115 (Ind. 1995); DAVID SKILLEN BOGEN, PRIVILEGES AND IMMUNITIES: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 106 (2003); Harry F. Tep-ker, Jr., The Arbitrary Path of Due Process, 53 OKLA. L. REV. 197, 211–13 (2000).

183 Saenz v. Roe, 526 U.S. 489, 528 (1999) (Thomas, J., dissenting) (“We should also con-sider whether the [Privileges or Immunities Clause] should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence.”).


support, and one with a substantial historical pedigree that reaches back to long before Slaughter-House. A revival of the Privileges or Immunities Clause would not warrant abandoning substantive due process jurisprudence.

A. How Substantive Due Process Works

There has been so much foolish, misguided, politically biased, intentionally misleading nonsense written about substantive due process that it is very hard for any newcomer to even get an accu-rate view of what the theory actually holds. Indeed, even the very name “substantive due process,” a term not devised until the 1940s,184 is misleading, because it leaves out the most significant word in the Due Process Clause. That clause forbids the govern-ment from depriving individuals of life, liberty, or property, except through due process of law. The words “of law” are crucial, because the authors of both the Fifth and Fourteenth Amendment’s Due Process clauses believed that not everything government does qualifies as “law.” Just as form cannot exist except when composed of a substance, and substance cannot exist except in some specific form, a government action qualifies as law only if it meets both formal and substantive criteria to qualify it as law. When a govern-ment action does not meet these standards, that action does not qualify as “law,” and thus to enforce it in a way that deprives indi-viduals of life, liberty, or property would by definition deprive them of these rights without due process of law.

For example, if Congress were to pass a bill, and the President to sign it, establishing a religion for the United States, that legisla-tion would contradict the First Amendment, and would therefore have no validity or force. The Establishment Clause explicitly de-prives Congress of the power to “make [any] law” on this subject, and Article VI says that only those legislative enactments which are made “in pursuance” of the Constitution, shall be the supreme law

184 G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 245 (2000). White’s is one of the very few fair discussions of the concept of substantive due process. See also James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 CONST. COMMENT. 315, 319 (1999) (“It bears emphasis that the phrase ‘substantive due process’ is anachronistic when used to describe decisions rendered during the nineteenth and early twentieth centuries.”).


of the land. Therefore any enactment which establishes a religion for the United States, even if it passes through all of the formal channels cannot be regarded as a “law.” Being without constitu-tional authority, such an enactment might be called a pronounce-ment, declaration, resolution, or assertion, but it cannot be called “law.” It follows, then, that any attempt by government officials to enforce that pronouncement by depriving persons of life, liberty, of property—jailing persons who refuse to attend mandated church services, for example—would violate the due process of law re-quirement.

The same rule applies even when the enactment does not violate some explicit provision of the Constitution’s text: for example, if an enactment violates the separation of powers (a phrase not found in the Constitution) or if the government acts arbitrarily (a term also not found in the Constitution). If they violate these constitutional princi-ples, such legislative enactments cannot enjoy the force of law. Mere formal approval through the procedures laid out in the Constitution does not suffice to make an enactment a law, any more than the sub-stance of a bill can make it law before it goes through the requisite for-mal procedures. This is where the name “substantive due process” is derived: the theory recognizes the indivisibility of form and substance. As the Court held in Cummings v. Missouri,185 six years before the Slaughter-House decision, “what cannot be done [by government] di-rectly cannot be done indirectly. The Constitution deals with sub-stance, not shadows. Its inhibition was levelled at the thing, not the name. . . . If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceed-ing.”186

In short, the due process of law requirement mandates that the government act through law, as opposed to acting arbitrarily, or in ex-cess of its authority. The concept of “law” includes certain elements—both formal and procedural elements—and a legislative enactment which lacks these elements cannot qualify as law. Law is the use of government’s coercive powers in the service of some general principle;

185 71 U.S. (4 Wall.) 277 (1867). 186 Id. at 325. Cummings was written by Justice Field.


that is, under some intelligible theoretical regularity,187 and not based on the mere ipse dixit of the legislating body. Law is the use of coercion for public purposes, not for the personal interest of the lawmaking au-thority.188 Government may not act against a particular group or indi-vidual simply because they are disfavored. Finally, as a consequence of these generality and publicness requirements, law must also be proce-durally comprehensible and regular: ad hoc proceedings are not law because “[l]aw is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particu-lar case . . . .”189 The requirement of basic regularity encompasses a re-quirement that the government be procedurally fair: in other words, procedural due process is only a subset of “substantive due process.”

The most famous early articulation of what would later be called “substantive due process” theory came in 1819, in Daniel Webster’s oral argument before the Supreme Court in the Dartmouth College Case.190 His summation of the meaning of “law of the land”—a phrase synonymous with “due process of law”191—was repeatedly quoted by the Court in the decades that followed:192

[Law] “is a rule; not a transient sudden order . . . to or con-cerning a particular person; but something permanent, uni-form and universal. . . .” By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen

187 See, e.g., H.L.A. HART, THE CONCEPT OF LAW 21 (2d ed. 1994); F.A. HAYEK, THE CONSTITUTION OF LIBERTY 209 (1960).

188 Cf. ARISTOTLE, Politics 1279a, reprinted in THE BASIC WORKS OF ARISTOTLE 1185 (Richard McKeon ed., Random House 1941) (“governments which have a regard to the common interest are constituted in accordance with strict principles of justice, and are therefore true forms; but those which regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.”).

189 Hurtado v. California, 110 U.S. 516, 535 (1884). 190 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 581–82 (1819) (argu-

ment of Mr. Webster). 191 Robert E. Riggs, Substantive Due Process in 1791, 1990 WIS. L. REV. 941, 950

(1990). 192 See, e.g., Powell v. Alabama, 287 U.S. 45, 68 (1932); Hovey v. Elliott, 167 U.S.

409, 418 (1897); Hurtado, 110 U.S. at 535–36; Ex parte Wall, 107 U.S. 265, 289 (1883); Beckwith v. Bean, 98 U.S. 266, 295 (1878).


shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enact-ment, is not, therefore, to be considered the law of the land. If this were so, . . . decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange con-struction would render constitutional provisions, of the highest importance, completely inoperative and void. . . . There would be no general permanent law for courts to ad-minister, or for men to live under. The administration of jus-tice would be an empty form, an idle ceremony.193

Webster paraphrased a passage from Edmund Burke to clarify his meaning: “‘Is that the law of the land,’ said Mr. Burke, ‘upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate, according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is?’”194 When government acts according to no rule but its own dis-cretion—when the citizen can only know what the rule of law is after the ruler promulgates it—the citizen cannot be said to live un-der a rule of law. Instead, the citizen is subject to arbitrary rule and is therefore deprived of due process of law. This is equally true when the arbitrary power is wielded by a monarch as when it is wielded by the voting public.195

193 Dartmouth College, 17 U.S. (4 Wheat.) at 580–82 (argument of Mr. Webster) (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES *44).

194 Id. at 582. Burke’s actual wording was: “The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional. . . . No man in . . . any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, ‘What is my tenure in law of this estate?’ he would an-swer, ‘Truly, sir, I know not; the court has no rule but its own discretion: they will determine.’” Edmund Burke, Speech on Parliamentary Incapacitation (Jan. 31,1770), reprinted in 2 WRITINGS AND SPEECHES OF EDMUND BURKE 235 (Paul Langford ed., Oxford University Press 1981).

195 See THE FEDERALIST NO. 51, at 352 (James Madison) (Jacob E. Cooke ed., 1961) (“In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger.”); see


Only two years after Slaughter-House, the Court decided the first of the great post-Civil War substantive due process cases, Loan Asso-ciation v. Topeka.196 In that case, citizens challenged the decision by city officials to use taxpayer money to invest in a privately-owned railroad. The Court ruled in their favor, concluding that government action transferring wealth from A to B merely to benefit B is inher-ently arbitrary and unlawful. For the government to take away a per-son’s property and “bestow it upon favored individuals to aid pri-vate enterprises and build up private fortunes” is “robbery,” even if “it is done under the forms of law.”197 Such an arbitrary action is “not legislation,” but “a decree under legislative forms.”198 To deprive a person of money by “decree” instead of a law is, of course, to deprive that person of property without due process of law. Again, in 1877, five years after Slaughter-House, the Court reiterated the point in Davidson v. New Orleans:199 a state cannot “make any thing due proc-ess of law which, by its own legislation, it chooses to declare such,” because this would mean “that the prohibition to the States is of no avail.”200 And, again, in 1884, in Hurtado v. California: “Arbitrary power . . . is not law . . . . The enforcement of [constitutional] limita-tions by judicial process is the device of self-governing communities to protect the rights of Individuals . . . against the violence of public agents transcending the limits of lawful authority . . . .”201

The timing of these decisions—not to mention Webster’s Dart-mouth College argument—indicates how unlikely it is that this doc-trine was devised simply in reaction to the Slaughter-House decision. But more importantly, the theories themselves differ. While the Privileges or Immunities Clause prohibits states from a specific category of legislative action—from making any law that abridges the privileges or immunities of citizenship—the Due Process Clause prohibits the legislature from acting arbitrarily. The latter prohibi-tion is not dependent on the former; they are independent legal

also Hurtado, 110 U.S. at 536 (“Arbitrary power . . . is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.”).

196 87 U.S. (20 Wall.) 655 (1874). 197 Id. at 664. 198 Id. 199 96 U.S. 97 (1877). 200 Id. at 102. 201 110 U.S. 516, 536 (1884).


theories. They do overlap, of course,202 because certain legislative acts are so inherently unfair or arbitrary that, notwithstanding their formal legislative enactment, they can never substantively conform to the definition of law.203 But they are distinct concepts, and the doctrine of substantive due process does not depend in any way on the meaning of the Privileges or Immunities Clause or the outcome in Slaughter-House.

B. The Due Process Clause’s Substantive Dimension was Well Understood before The Slaughter-House Cases.

Even if substantive due process did depend on an erroneous in-terpretation of the Due Process Clause, its historical pedigree reaches back farther than the decision in Slaughter-House. We have already seen that the leading substantive due process cases of the post-Civil War era—Loan Association, Davidson, and Hurtado—were issued within only a few years of Slaughter-House, which alone casts doubt on the narrative by which substantive due process was con-cocted to patch up the Slaughter-House Court’s error.204 If we add to that history Daniel Webster’s Dartmouth College argument, we see that substantive due process theory predates Slaughter-House by nearly half a century—and, in fact, several American courts had already adopted the doctrine of substantive due process long before the ratification of the Fourteenth Amendment.205

202 As Richard Aynes observes, the charge that the Privileges or Immunities Clause would render the Due Process Clause surplusage, or vice versa, “presupposes that the framers had an aversion to redundancy when, in fact, they saw it as providing increased security.” Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges And/Or Immunities, 11 U. PA. J. CONST. L. 1295, 1306 n.59 (2009).

203 My approach to these questions therefore differs from that of Randy E. Barnett, who has proposed a different reconciliation of the apparently overlapping Due Proc-ess and Privileges or Immunities clauses. See Barnett, supra note 37, at 471.

204 The myth that substantive due process was simply a substitute for privileges or immunities is ubiquitous. See, e.g., ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 129–32 (1960); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 554 (2d ed. 1988); Bradley P. Jacob, Griswold and the Defense of Traditional Marriage, 83 N.D. L. REV. 1199, 1211 (2007).

205 See Ely, supra note 184, at 320–45; Riggs, supra note 191, at 948–99; Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 EMORY L.J. 585, 622–68 (2009).


Probably most famous today is the 1856 New York decision Wynehamer v. People,206 in which Justice George Comstock explained that word “law” cannot refer to “the very act of legislation which de-prives the citizen of his rights,” because this would make the clause “mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away.”207 The proper meaning of the due process of law restraint was that “where rights are acquired by the citizen under the existing law, there is no power in any branch of the government to take them away”208—that is, that the legislature may not simply dispossess a person of vested rights simply as an act of political will. There were similar decisions predat-ing Wynehamer.209 In 1868, the same year that the Amendment was ratified, and five years before Slaughter-House, Thomas Cooley’s fa-mous treatise Constitutional Limitations quoted Webster’s Dartmouth College argument as the most common definition of the term “due process of law,” concluding that the Due Process Clause protected substantive rights against unprincipled or arbitrary legislation.210

206 13 N.Y. 378 (1856). 207 Id. at 393. 208 Id. 209 See, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18

How.) 272, 276–77 (1855) (the due process clause makes it “manifest that it was not left to the legislative power to enact any process which might be devised.”); Parham v. Justices, 9 Ga. 341, 354 (1851) (property rights are “fundamental principle[s]” which legislatures may not disregard; thus “[i]f the Legislature should pass a law to transfer the property of A to B, under pretext of public necessity and utility, when no such necessity or utility exists in fact, there can be no doubt but that it would be the right and duty of the Judiciary to set it aside.”); Concord R.R. v. Greely, 17 N.H. 47 (1845) (“a law providing merely that the property of A should be taken from and given to B, either with or without a consideration, would be repugnant to the consti-tution. Not indeed to the letter of any particular clause contained in it, but to its spirit and design, which, throughout the whole, discountenance the idea that the property of the citizen is held by any such uncertain tenure as the arbitrary discretion of the legislature”); Norman v. Heist, 5 Watts & Serg. 171, 172–74 (Pa. 1843) (“It was deemed necessary to insert a special provision in the Constitution to enable [the legislature] to take private property even for public use, and on compensation made; but it was not deemed necessary to disable them specially in regard to taking the property of an individual, with or without compensation, in order to give it to an-other…because it was expected that no Legislature would be so regardless of right as to attempt it.”).

210 THOMAS COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS 353 (1868).


The Fourteenth Amendment’s framers were familiar with the concept of substantive due process and mentioned it during the rati-fication debates.211 When asked to explain the “due process of law” clause in the new amendment, Congressman Bingham replied that referred to “law in its highest sense, that law which . . . is impartial, equal, exact justice; that justice which requires that every man shall have his right.”212 When asked to define “due process of law,” he and Congressman William Lawrence responded by pointing to estab-lished case law.213 Indeed, Lawrence cited several famous cases by name—including Wilkinson v. Leland,214 Terrett v. Taylor,215 People v. Morris,216 Taylor v. Porter & Ford,217 and Fletcher v. Peck218—for the

211 Michael Kent Curtis, The Fourteenth Amendment: Recalling What the Court Forgot, 56 DRAKE L. REV. 911, 934 (2008) (leading Republicans “read the Due process clause as protecting substantive rights.”).

212 CONG. GLOBE, 39th Cong., 1st Sess. 1094 (1866); see also id. at 2459 (statement of Rep. Thaddeus Stevens) (Due Process Clause prevents states from “unlawfully de-priving [persons] of life, liberty, or property”); id. at 340 (statement of Sen. Edgar Cowan) (due process of law meant that “the rights of no free man, no man not a slave, can be infringed in so far as regards any of the great principles of English and American liberty”); id. at 1294 (statement of Rep. James Wilson) (due process in-cluded the “great civil rights” referred to in the Civil Rights Act of 1866); id. at 1833 (statement of Rep. William Lawrence) (due process means that “there [are] rights which are inherent, and of which a State cannot constitutionally deprive him”).

213 Id. at 1089 (statement of Rep. John Bingham); id. at 1833 (statement of Rep. Wil-liam Lawrence).

214 27 U.S. (2 Pet.) 627 (1829). Lawrence pointed to page 657 of the Wilkinson deci-sion, which addresses substantive due process theory: “In a government professing to regard the great rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would not lightly be presumed that the great principles of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter…as an exercise of transcendental sovereignty before the revolution, it can scarcely be imagined that that great event could have left the people of that state subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred.”

215 13 U.S. (9 Cranch) 43 (1815). 216 13 Wend. 325 (N.Y. 1835). Lawrence cited page 328 of this case, CONG. GLOBE,

39th Cong., 1st Sess. 1833, which refers to “natural and inherent rights of the citizens, which they cannot part with or be deprived of by the society to which they belong . . . . It is now considered an universal and fundamental proposition, in every well


proposition “every citizen has ‘absolute rights’” that legislatures may not violate.219 Thus, while Reconstruction-era Republicans did intend the Privileges or Immunities Clause as the “substantive heart of the amendment,”220 they also correctly understood that the “due process of law” clause of its own force would prohibit government from arbi-trary actions that violate individuals’ natural and civil rights.

C. The Modern Critique of Substantive Due Process

We have seen that what is now called substantive due process is far more complicated that is generally recognized by contempo-rary discussions of that theory. Indeed, the very name is mislead-ing, since eighteenth and nineteenth century courts did not use that term and would not have recognized it: they believed they were simply applying the due process of law requirement—that is, pro-tecting individual rights against arbitrary government actions. That understanding of due process of law was widespread when the Fourteenth Amendment was written, and even when the Fifth Amendment was written. Substantive due process therefore has a strong “originalist” basis.

regulated and properly administered government . . . private property cannot be taken for strictly private purposes at all, nor for public without a just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired . . . . [I]f any rights vested under the National or State Constitutions, or others inherent and inalienable and, therefore, also vested, have been violated by any provision of the Revised Statutes, such provision is inoperative and void.”

217 4 Hill 140 (N.Y. 1843). Lawrence cited page 147 of the Taylor decision, CONG. GLOBE, 39th Cong., 1st Sess 1833 which is a classic of substantive due process theory: “The words ‘by the law of the land’. . . do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the [legislature] . . . ‘You shall not do the wrong, unless you choose to do it.’ The section was taken with some modifications from a part of the 29th chapter of Magna Charta . . . . The meaning of the section then seems to be, that no member of the state shall be . . . deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation.” 4 Hill at 145–46.

218 10 U.S. (6 Cranch) 87 (1810). 219 CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866). 220 Shankman & Pilon, supra note 36, at 26.


Ironically, however, many of those who describe themselves as originalists are among the most strident critics of substantive due process. These critics, Robert Bork for example, argue that the Fram-ers understood the Due Process Clause to guarantee only some sort of regular procedural mechanism prior to depriving a person of life, liberty, or property. The irony turns into tragedy when we realize that this “process-only” approach, under which the Due Process Clause imposes no limit on what kind of deprivations the state may ultimately impose, was formulated, not by the framers of the 1787 Constitution or the authors of the Fourteenth Amendment, but by the intellectual leaders of the Progressive movement during the first half of the twentieth century. These thinkers dramatically rearranged the intellectual order of American constitutionalism. In particular, they abandoned the natural-law concepts that underpinned both the doc-trine of due process of law and the Constitution itself.

1. PROGRESSIVES AND SUBSTANTIVE DUE PROCESS

During the Progressive era, lawyers and judges like Oliver Wendell Holmes221 and Louis Brandeis threw off the notion that there were any prepolitical standards of right and wrong by which political society might be judged.222 In place of the classical liberal theory that there are universal principles of human nature which limit what the state may rightly do, the Progressives substituted a collectivist and relativist vision, according to which right and wrong are determined by social consensus, and have no deeper foundation than aggregated personal preferences.223 Justice and in-justice are simply whatever the group chooses to define that way,

221 See generally ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK, AND LEGACY OF OLIVER WENDELL HOLMES (David Bemelmans ed., 2000).

222 See, e.g., LOUIS MENAND, THE METAPHYSICAL CLUB 439 (2000) (Progressive thinkers “helped put an end to the idea that . . . there exists some order, invisible to us, whose logic we transgress at our peril.”); CHARLES EDWARD MERRIAM, A HISTORY OF AMERICAN POLITICAL THEORIES 311 (1920) (1903) (“The present tendency . . . in American political theory is to disregard the once dominant ideas of natural rights and the social contract . . . . [R]ights are considered to have their source not in nature, but in law.”).

223 Oliver Wendell Holmes, Natural Law, 32 HARV. L. REV. 40, 41 (1918) (“Deep-seated preferences can not be argued about—you can not argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way.”)


and therefore, in Holmes’s words, “more or less arbitrary.”224 The idea that there are limits to what the state may do to us was, in his eyes, nothing more than subjective sentiment backed by the will to do violence in the service of that sentiment. This readiness to fight for one’s irrational preferences may gradually transform those “emotions” into “general rules,” but they have no deeper philoso-phical basis than “a dog[’s] will [to] fight for his bone.”225 Arguing

224 Letter from Oliver Wendell Holmes to Lady Pollock (Sept. 6, 1902), in 1 THE HOLMES-POLLOCK LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND SIR FREDERICK POLLOCK 1874–1932, at 104, 105 (Mark DeWolfe Howe ed., 1961).

225 Holmes, supra note 223, at 42. In fact, Holmes seems to have underestimated dogs. Dogs presumably do not fight for bones out of mere subjective preference, but because, like all of us, they are mortal beings in a world of limited resources and limited time. Since, unlike human beings, dogs cannot create wealth, it is natural and rational for them to fight for bones if they have to—and, indeed, it is right for them to do so, according to the understanding of natural goodness embraced by the Aristote-lian tradition. See PHILIPPA FOOT, NATURAL GOODNESS 15–16 (2001); JOHN HERMAN RANDALL, JR., ARISTOTLE 250–53 (1960). Human beings, as rational animals, have a much different method of survival, but, like dogs, they have a nature, and therefore a natural (i.e., not merely subjective, conventional, or socially constructed) standard of goodness.

Another one of Holmes’s dogs also had a better understanding of natural law than did Holmes. In THE COMMON LAW 3 (1923), he wrote that “even a dog distinguishes between being stumbled over and being kicked.” Yet this suggests that the difference between these two things is not purely conventional. After all, as Adam Smith rec-ognized, dogs do not have conventions. See 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 26 (Oxford University Press 1976) (1776) (“Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog.”). But if there is a natural difference between intentional wrongs (kicking) and accidental injuries (tripping), then why cannot a human society recognize distinctions of justice based not on convention but on nature, when formu-lating its code of laws? Holmesian positivism is incapable of distinguishing between malum prohibitum and malum in se wrongs. Kicking dogs, as Simon Blackburn has observed, is not malum prohibitum:

It is not because of the way we form sentiments that kicking dogs is wrong. It would be wrong whatever we thought about it . . . . Suppose someone said ‘if we had different sentiments, it would be right to kick dogs’, what would he be up to? Ap-parently, he endorses a certain sensibility: one which lets information about what people feel dictate its attitude toward kicking dogs. But nice people do not endorse such a sensibility. What makes it wrong to kick dogs is the cruelty or pain to the animal.

SIMON BLACKBURN, SPREADING THE WORD: GROUNDINGS IN THE PHILOSOPHY OF LANGUAGE 217–18 (1984).

Actually, there is some evidence suggesting that dogs have a sense of “fair play” that includes mores of exchange. See, e.g., Marc Bekoff, Wild Justice And Fair Play:


that there are such things as natural standards of right and wrong is like “churning the void in the hope of making cheese.”226

If this is the case, there can be no principled distinction between law and force. Law is simply the command of the coercive authority. There can be no test of a law’s validity except the fact that it was enacted and enforced. Arguing that a law violates individual rights cannot render the law invalid because under this theory, rights are recast as socially con-structed permissions: spheres of individual autonomy created by the state’s willingness to intervene on the individual’s behalf.227 “All my life I have sneered at the natural rights of man,” wrote Holmes.228 To speak of individual rights valid against the state was, to him, “like shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist.”229 Rights are created by the state, and exist only insofar as the state chooses to create and defend them.

Because they had abandoned the idea that law could be judged by comparison to pre-political standards of right and wrong, the Progressives also blinded themselves to any difference between law and arbitrariness. Where previous generations of lawyers believed that the difference resided in whether the rule at issue consisted with the broader purposes of the state—thus, whether it was bounded by the natural rights of individuals—Progressives saw political power as merely authoritarian and therefore inherently sub-jective. There could be no limits on government sovereignty (in fact, many contemporary observers noted that Progressives appeared to

Cooperation, Forgiveness, and Morality in Animals, 19 BIO. & PHILO. 489 (2004). But there is much stronger evidence showing that animals closer to man have some sense of “fairness.” See Sarah F. Brosnan & Frans B. M. de Wall, Monkeys Reject Unequal Pay, 425 NATURE 297 (2003); Sarah F. Brosnan, Nonhuman Species’ Reactions to Inequity and Their Implications for Fairness, 19 SOC. JUST. RES. 153 (2006); Keith Jensen, et al., Chim-panzees Are Rational Maximizers in an Ultimatum Game, 318 SCIENCE 107 (2007). Holmes’ flippant notion that moral views are mere conventional preferences must be rejected as untenable.

226 Letter from Oliver Wendell Holmes to Alice Stopford Green (Aug. 20, 1909), in THE ESSENTIAL HOLMES 115, 116 (R. Posner ed., 1992).

227 See MENAND, supra note 222, at 409 (Progressives believed that “rights are cre-ated not for the good of individuals, but for the good of society. Individual freedoms are manufactured to achieve group ends.”).

228 Letter from Oliver Wendell Holmes to Harold Laski (Sept. 15, 1916), in 1 HOLMES-LASKI LETTERS 18, 19 (Mark DeWolfe Howe ed., 1953).

229 Letter from Oliver Wendell Holmes to Harold Laski (Jan. 29, 1926), in THE ESSENTIAL HOLMES, supra note 226, at 234, 235.


be reviving the states’ rights approach to sovereignty)230 or any uni-versal standards by which political regimes could be judged as ob-jectively good or bad. As today’s leading acolyte of Holmes has put it in discussing the prosecution of the twentieth century’s paradigm violation of natural justice, “[i]t was right to try the Nazi leaders [at Nuremburg] rather than to shoot them out of hand . . . . But it was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs.”231 That is, even the Holocaust was only “wrong” in the sense that it offended the aggregated subjective preferences of the Allies.232

If the mere enactment is criterion of lawfulness, there can be nothing left of the “due process of law” requirement than that the legislature observe certain procedural formalities.233 Even where the consequences are arbitrary, or even irrational, governments actions must be considered “lawful,” and under the Progressive jurispru-dence that now prevails—that is, the “rational basis” test—such laws have withstood constitutional challenges so long as the gov-ernment agency that acts arbitrarily does so through the proper

230 See, e.g., PHILEMON BLISS, OF SOVEREIGNTY 95–96 (1884); CHARLES EDWARD MERRIAM, A HISTORY OF AMERICAN POLITICAL THEORIES 300–03 (1903); CHARLES EDWARD MERRIAM, HISTORY OF THE THEORY OF SOVEREIGNTY SINCE ROUSSEAU 112–18 (1900); John A. Jameson, National Sovereignty, 5 POL. SCI. Q. 193 (1890).

231 Richard Posner, Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1644–45 (1998) (emphasis added).

232 But see RICHARD A. EPSTEIN, SKEPTICISM AND FREEDOM 75–83 (2003) (rebutting this point).

233 Actually, this point is fallacious. The position that a rule’s rightfulness is de-termined by promulgation cannot account for the rules of promulgation themselves. If an action is lawful whenever it follows the procedures, then any rule that sets forth procedures is valid. Without some higher-order rule to distinguish just procedures from unjust procedures, this approach is simply incapable of accounting for gov-ernment actions in terms of justice. If rules of promulgation are self-justifying, there would not only be no grounds for choosing a constitution that implements democ-ratic procedures over one that implements monarchical, fascist, or communist proce-dures, see HARRY V. JAFFA, ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION: A DISPUTED QUESTION 85–86 (1994), but there would not even be a reason to prefer a legislature that obeys the rules of promulgation over one that breaks those rules. After all, by exceeding those limits, the legislature is merely creat-ing a new rule of promulgation! For an example of just this phenomenon, see Timo-thy Sandefur, A Private Little Bush v. Gore, Or, How Nevada Violated the Republican Guarantee and Got Away With It, 9 TEX. REV. L. & POL. 105 (2004).


procedural formalities. 234 For example, although early American judges regarded it as the paradigm case of unlawful and arbitrary government for the legislature to take property from A and give it to B,235 courts now hold that “[o]n urban renewal condemnations . . . the whole scheme is for a public agency to take one man’s prop-erty away from him and sell it to another. The founding fathers may have never thought of this . . . but under all modern federal deci-sions our hands are tied—if the book on the procedure is followed.”236

The Progressives reversed the Founders’ constitutional priori-ties: where the Founders viewed liberty as the primary good to be promoted by the American constitutional order and imposed strin-gent limits on democratic lawmaking to protect liberty, Progressive intellectuals saw democracy as the ultimate political good and lib-erty as a product, as well as the servant, of democratic society: lib-erty was created by the collective’s agreement to allow freedom to the individual, and it existed only to promote democratic decision-making.237 Indeed, as Herbert Croly admitted in 1915, the goal of Progressivism was “the emancipation of the democracy from con-tinued allegiance to any specific formulation of the Law, and its in-creasing ability to act upon its collective purposes.”238 The value of “an ideal of social justice”239 must be “as widely and as persistently inculcated in a democracy as the worship of the Constitution formerly was, for it is the foundation not only of the liberty of the American people, but of their ability to convert civil and political liberty into a socially desirable consummation.”240

234 See MENAND, supra note 222, at 432 (Progressives “shift[ed] the totem of legiti-macy from premises to procedures. We know an outcome is right not because it was derived from immutable principles, but because it was reached by following the correct procedures . . . . [I]f the legal process was adhered to, the outcome is just . . . . [J]ustice is whatever result just procedures have led to.”).

235 See John V. Orth, Taking From A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENT. 337 (1997).

236 Government of Guam v. Moylan, 407 F.2d 567, 568–69 (9th Cir. 1969) (emphasis added).

237 See also Timothy Sandefur, Mine and Thine Distinct: What Kelo Says About Our Path, 10 CHAP. L. REV. 1, 19–29 (2006).

238 HERBERT CROLY, PROGRESSIVE DEMOCRACY 154 (1915). 239 Id. at 212. 240 Id. at 215 (emphasis added).


This revolution in the concept of lawfulness is evident in the majority and dissenting opinions in Lochner v. New York.241 There, the majority concluded that a law depriving bakers of the opportu-nity to work for more than 10 hours a day violated the due process of law requirement, because it was fundamentally arbitrary. Their reasoning was that a limit on the worker’s freedom to make his own economic choices could be justified only if it served some broader public good—and indeed, the Court at this time tolerated a wide variety of limits on economic liberty when those limits were backed by some plausible explanation in terms of protecting the public health, safety, and welfare.242 But no such justification appeared in the Lochner case because there was no evidence that the general public or the bakers themselves were endangered by bakers work-ing long hours.243 Rather, the limit on working hours appeared to have no other justification than that the majority of legislators voted for it—it was, in the Court’s eyes, a mere act of force with no deeper principle. It was therefore arbitrary and deprived the bakers of lib-erty without due process of law.244 In dissent, Holmes argued for an extreme degree of judicial deference to whatever acts the legislature chose to undertake. The word liberty is “perverted,” he wrote, when it is “held to prevent the natural outcome of a dominant opinion.”245 Any theoretical distinctions between lawful uses of government power and

241 198 U.S. 45 (1905). 242 Id. at 56 (“[T]here is a limit to the valid exercise of the police power by the State

. . . . Otherwise the Fourteenth Amendment would have no efficacy and the legisla-tures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely with-out foundation the claim might be. The claim of the police power would be a mere pretext—become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint.”).

243 See id. at 58 (“There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker.”).

244 See id. at 61 (“Statutes . . . limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual . . . unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employees.”).

245 Id. at 76 (Holmes, J., dissenting).


unlawful ones were mere abstract fantasies—“shibboleths,” one might say246—that deserved the scorn of all true sophisticates.

The judicial deference for which the Progressives contended be-came constitutional law thirty years later in Nebbia v. New York,247 when the Supreme Court sustained a Depression-era New York statute prohibiting grocers from charging low prices for milk. Such price floors, of course, were hardly a blessing to the poor, and as Justice McReynolds pointed out in his dissent, the statute was as rational as pouring oil on the roof of a burning house, hoping thereby to extinguish the flames.248 Nevertheless, the Court upheld the law, concluding that virtually anything the legislature did would qualify as “law” for purposes of the “due process of law” requirement. Nebbia signaled the beginning of the end of substan-tive due process theory, at least until its revival during the Warren Court era, when the Court began protecting rights of intimate pri-vacy against state legislation.

2. INTIMACY RIGHTS AND THE PROGRESSIVE/CONSERVATIVE CRITIQUE OF SUBSTANTIVE DUE PROCESS

Today’s conservatives have embraced the modern critique of substantive due process—a critique generated during the Progres-sive era as part of an overall renovation of American constitutional law.249 Most obvious among these is Bork, whose book The Tempting of America consists of a lengthy attack on substantive due process. In his account, that doctrine has no warrant in constitutional history and serves as nothing more than a trick whereby judges can enforce their personal policy preferences in the form of constitutional

246 Id. at 75. 247 291 U.S. 502 (1934). 248 Id. at 556 (McReynolds, J., dissenting) (“this Court . . . must inquire concerning

its purpose and decide whether the means proposed have reasonable relation to something within legislative power . . . . If a statute to prevent conflagrations should require householders to pour oil on their roofs as a means of curbing the spread of fire when discovered in the neighborhood, we could hardly uphold it. Here, we find direct interference with guaranteed rights defended upon the ground that the pur-pose was to promote the public welfare by increasing milk prices at the farm. Unless we can affirm that the end proposed is proper and the means adopted have reason-able relation to it, this action is unjustifiable.”).

249 Timothy Sandefur, The Wolves And The Sheep of Constitutional Law: A Review Es-say on Kermit Roosevelt’s The Myth of Judicial Activism, 23 J.L. & POL, 1, 17 (2007).


law.250 But Bork’s account is rooted, not in the views of the Foun-ders,251 but in the views of Progressive era lawyers and judges; in-deed, Bork frequently invokes Holmes as a model of the “judicial restraint” that he advocates.252 It is not surprising to find liberals such as Justice David Souter253 and John Hart Ely254 sharing Bork’s narrative of substantive due process. In their rejection of natural rights and their embrace of a “process-only” approach to due proc-ess, Bork and his allies are working well within the parameters of Progressive jurisprudence—and well outside the tradition of the Founders’ classical liberalism.255 At bottom, they share the Progres-sive belief that promulgation by the ruling authority is sufficient to make a law lawful. The lawmaking body may do whatever it pleases, so long as it abides by procedural formalities.

It is not difficult to see why conservatives have embraced these Progressive views; the modern Supreme Court has employed substan-tive due process to uphold abortion rights and other rights of sexual

250 See ROBERT BORK, THE TEMPTING OF AMERICA 32 (1990). 251 See generally HARRY V. JAFFA, STORM OVER THE CONSTITUTION (1999). 252 In fact, Bork at one point criticizes Holmes for not being deferential enough to

legislative power. See BORK, supra note 250, at 45 (“[Holmes] spoiled it all” by allow-ing some realm for judicial review, showing that he “after all, did accept substantive due process.”).

253 Washington v. Glucksberg, 521 U.S. 702, 761 (1997) (Souter, J., concurring). 254 JOHN HART ELY, DEMOCRACY AND DISTRUST 14–19 (1980). 255 Categorizing Bork as a Progressive is counterintuitive, given his strong insis-

tence on the importance of a morally authoritarian state. See, e.g., JEFFREY C. ISAAC, THE POVERTY OF PROGRESSIVISM 23 (2003) (contrasting Bork’s “militant moralism” with Progressive liberalism). But the apparent differences between Bork and Pro-gressives dissolve when two factors are considered. First, the Progressive movement was actually quite moralistic and authoritarian. See generally MICHAEL MCGERR, A FIERCE DISCONTENT: THE RISE AND FALL OF THE PROGRESSIVE MOVEMENT IN AMERICA 1870–1920 (2003). Second, while he is an authoritarian, Bork does not actually defend a transcendental moral dimension along the lines of ancient political philosophy. In his account, the morality on which politics should be based is not a permanent uni-versal law, something he regards as a chimera on the order of a perpetual motion machine. See BORK, supra note 250, at 255–56. Instead, like Holmes, Bork defines mo-rality as whatever the majority dictates. Id. at 256–57 (“our public moral debates . . . have been interminable and inconclusive because we start from different premises . . . . That is why . . . we should vote about these matters rather than litigate them . . . . There is going to be no moral philosophy that can begin to justify courts in overrid-ing democratic choices where the Constitution does not speak.”).


privacy against state interference.256 Thus conservatives hope that by overthrowing substantive due process, they could take the next step of abolishing abortion and other privacy rights. In Griswold v. Connecti-cut,257 the Supreme Court struck down a state law barring doctors from advising married couples about birth control. This statute deprived persons of liberty without due process of law because it intruded on constitutionally protected privacy rights without having any real con-nection to a general public purpose; it was arbitrary because it had no other support than the fact that a legislative majority had enacted it. Yet because the Justices were keen to avoid the specter of “substantive due process,” the majority struggled to adopt a vocabulary distinguish-ing the case from Lochner.258 It therefore employed a confusing lan-guage of “emanations” and “penumbras” that has invited ridicule ever since. Justice Hugo Black, in dissent, was not fooled. The decision, he rightly saw, was actually in the footsteps of Lochner.259 Indeed, “beyond the disguises of the rhetoric, the judges were speaking again in the logic of natural rights.”260 As this right to privacy became the founda-tion for the Court’s later protection of abortion rights, conservatives opposed to abortion adopted Black’s argument and attacked natural rights as the inevitable route to abortion rights. As Dean John Eastman has put it, “[m]any conservatives have what might be called a ‘Justice Brennan Problem.’ They are not willing to give any credence to a natu-ral rights jurisprudence . . . lest it become the departure point for Jus-tice Brennan’s, or now Justice Stevens’s, liberalism.”261

256 As Harry Jaffa has shown, however, embracing the Progressivist view of law-as-promulgation holds only false hope for opponents of abortion, since that critique would render them impotent to criticize a legislature that democratically provided for abortion rights. JAFFA, supra note 251. Indeed, Justice Antonin Scalia has ac-knowledged this explicitly: “[i]f the people, for example, want abortion the state should permit abortion.” Ralph A. Rossum, The Textualist Jurisprudence of Antonin Scalia, in HISTORY OF AMERICAN POLITICAL THOUGHT 787, 792 (Bryan-Paul Frost & Jeffrey Sikkenga, eds., 2003) (quoting Antonin Scalia, Of Democracy, Morality and the Majority, Address at Gregorian University (May 2, 1996), in 26 ORIGINS 82, 88 (1996)).

257 381 U.S. 479 (1965). 258 See id. at 481–82 (“Overtones of some arguments suggest that Lochner . . . should

be our guide. But we decline that invitation.”). 259 See id. at 511–12 (Black, J., dissenting). 260 HADLEY ARKES, THE RETURN OF GEORGE SUTHERLAND 29 (1994). 261 John C. Eastman, Re-evaluating The Privileges or Immunities Clause, 6 CHAP. L.

REV. 123, 136 (2003).


Consider, for example, Lawrence v. Texas,262 in which the Supreme Court invalidated a Texas statute imposing criminal penalties on sodomy and other “deviate” sexual behavior. Seen from the perspec-tive of substantive due process, the first question in Lawrence is whether the Texas anti-sodomy statute deprives people of their lib-erty. Clearly it does, since it interferes with a person’s voluntary ac-tion when that action does no harm to any non-consenting third per-son. The second question would then be whether the Texas anti-sodomy statute had those elements that make it a “law.” Here the Court rightly answered no: because there was no legitimate over-arching public justification for a law controlling only private behavior without any genuine effect on the public. The sexual activity in-volved was consensual, private, non-commercial conduct between adults that did not affect any other person in any way. There was no serious indication that such conduct would injure public health, safety, or morals—indeed, the purported moral justification was simply an ipse dixit by the legislative majority.263 But such majori-tarian say-so is not a serious argument that the activity is harmful to the general public; it is merely an assertion of power—a proscription, “rather a sentence than a law”264—and, being justified by no principle except that a majority voted for it, then it was inherently arbitrary, and not “law.” Thus the act at issue deprived the defendants of lib-erty without due process of law. In the Court’s simpler phrasing, “The Texas statute furthers no legitimate state interest which can jus-tify its intrusion into the personal and private life of the individ-ual.”265 And if it furthered no legitimate state interest, it was not

262 539 U.S. 558 (2003). 263 See Peter M. Cicchino, Reason And The Rule of Law: Should Bare Assertions of

“Public Morality” Qualify As Legitimate Government Interests for The Purposes of Equal Protection Review?, 87 GEO. L.J. 139, 177–78 (1998) (“Bare assertions of public moral-ity, like sectarian theological assertions, fail the test of public reasonability precisely because they are unrelated to human experience and are independent of any observ-able effects on public welfare . . . . [B]are public morality arguments support the legal enforcement of private bias, casting lawmaking as a kind of Nietzschean struggle of will, with various moral interest groups trying to gain legal enforcement of their beliefs without having to give reasons for those beliefs other than saying, ‘we believe it.’”).

264 Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 518 (1819) (argument of Mr. Webster) (quoting WILLIAM BLACKSTONE, 1 COMMENTARIES *44).

265 Lawrence, 539 U.S. at 578.


“law” and deprived John Geddes Lawrence and Tyron Garner of their liberty without due process of law.

One outspoken conservative critic of Lawrence is Professor Nel-son Lund, whose embrace of the Progressive myth of due process is total and emphatic. In a co-authored 2004 article attacking the deci-sion Lund begins, like Bork, with a straw man argument, describing substantive due process as simply “judicial disobedience”266—a cu-rious phrase to use in a nation where the constitutional separation of powers does not contemplate an “obedient” judiciary. Ignoring the history as well as the content of substantive due process juris-prudence, Lund repeats the untruth that it first appeared in Dred Scott,267 and resorts to a horse-laugh argument: substantive due process theory is merely the notion that “the Fifth Amendment con-tain[s] some kind of secret message telling judges that no person shall be deprived of life, liberty, or property except when judges find the deprivation sufficiently inoffensive to their moral and po-litical sensibilities.”268 As we have seen, the generations of lawyers and judges who employed what is now called “substantive due process” never claimed this. Lund is offering a straw man caricature of a serious legal argument that, where the legislature exceeds its legitimate authority, its actions cannot qualify as “law,” and there-fore cannot satisfy the due process of law requirement. To this ar-gument—an argument well over two centuries old—Lund “re-spond[s] with dead silence.” 269 Indeed, elsewhere, Lund has claimed that “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitu-tion”270—an assertion that, as we have seen, is simply false.

To interpret the Due Process Clause, Lund turns not to the views of its authors, but to Oliver Wendell Holmes, criticizing him only for not deferring enough to legislatures.271 In their view,

266 Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1557 (2004).

267 Id. at 1559. Lund and McGinnis also repeat the myth that substantive due proc-ess was essentially devised to make up for the error in Slaughter-House. See id. at 1561.

268 Id. at 1559. 269 Cf. id. 270 Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and

the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & POL. 1, 3 (2009). 271 Lund & McGinnis, supra note 266, at 1564.


legislatures “have always been adjusting the substantive con-tours of [fundamental] rights, and must continue to do so.”272 Rights are not to be regarded as immutable and universal protec-tions of human dignity; they are simply subjective matters of collective opinion. Since “[p]olitical philosophers have engaged for centuries in sharp and unsettled debates” 273 about these rights, there must therefore be no truth of the matter, and the issue is to be left in the hands of the majority. Indeed, Lund “den[ies] that the existence of natural or inherent rights is self-evident, no matter how strongly we may desire it to be true.”274 This, of course, is precisely the argument advanced by the Pro-gressives; an argument that transforms rights into permissions275 and erases the dividing line between law and arbitrariness. In-triguingly, they describe judges who employ substantive due process as “lawless,”276 without explaining why a judge who ex-ceeds his powers is “lawless,” while the acts of a legislature that exceed its legitimate authority are nevertheless to be regarded as “lawful” as that term is used in the “due process of law” clause. Lund’s approach would essentially eliminate any meaningful restraint on the power of the majority.277

Some conservatives are not as quick to jettison constitutional protections for natural rights, but they find themselves in the tick-lish position of trying to reconcile natural rights protections for

272 Id. at 1565. 273 Id. at 1591. 274 Nelson Lund, Rousseau and Direct Democracy (With A Note on the Supreme

Court’s Term Limits Decision), 13 J. Contemp. Legal Issues 459, 466 (2004); see also id. at 472 (“Hobbes . . . does not seem to establish, by adequate argument or evi-dence, the claims about natural or inherent rights that we find in the Virginia Decla-ration of Rights and the Declaration of Independence.”); id. at 474 (“Locke appears not to have established what the Declaration of Independence says is self-evident. Like the Declaration, Locke just asserts it.”).

275 Id. at 466 (“The rights that we actually see enforced—especially but not only le-gal rights—arise from human institutions”).

276 Lund & McGinnis, supra note 266, at 1560. 277 Lund does contend that Slaughter-House was wrongly decided and accepts that

the Privileges or Immunities Clause was intended to restrain government power. But he rejects Justice Washington’s opinion in Corfield—the foundation stone for inter-preting the privileges or immunities clause. See Nelson Lund, Have Gun, Can’t Travel: The Right to Arms Under the Privileges And Immunities Clause of Article IV, 73 UMKC L. REV. 951, 954–56 (2005).


property rights and economic liberty with a renunciation of consti-tutional security for privacy rights. No figure is more obviously in this uncomfortable spot than Justice Clarence Thomas, who has of-ten articulated a natural-rights understanding of the Constitution278 and repeatedly called for the revival of the Privileges or Immunities Clause,279 but who is an opponent of abortion rights and a critic of substantive due process.280 To hold that such intimacy rights as the right of a parent to raise a child are constitutionally protected natu-ral rights, as Justice Thomas did in Troxel v. Granville,281 while at the same time denying that the right to sexual intimacy is a constitu-tionally protected natural right, as he did in his brief dissenting opinion in Lawrence, is inconsistent, confusing, and unwarranted.

Justice Thomas dissented, joining in Justice Scalia’s decision that the majority may prohibit acts simply because it disapproves of them. Scalia’s opinion was unsurprising, given that he subscribes to the Progressive critique of substantive due process.282 But in his

278 See, e.g., Clarence Thomas, The Higher Law Background of the Privileges or Immuni-ties Clause of the Fourteenth Amendment, 12 HARV. J.L. & PUB. POL’Y 63 (1989); see also SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS (1999).

279 Saenz v. Roe, 526 U.S. 489, 521 (1999) (Thomas, J., dissenting); see also Troxel v. Granville, 530 U.S. 57, 80 n.* (2000) (Thomas, J., concurring in judgment).

280 Justice Thomas, for instance, joined Justice Scalia’s opinion in United States v. Carlton, 512 U.S. 26, 39 (1994), stating that “the Due process clause guarantees no substantive rights, but only (as it says) process.” Id. at 40.

281 530 U.S. at 80 (2000). 282 See generally JAFFA, supra note 251. Scalia shares Bork’s majoritarian view that

legislatures may punish actions solely because the legislative majority asserts that those acts are wrong, even if there is no basis for such an assertion. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 574–75 (1991) (Scalia, J., concurring) (citations omit-ted) (“Our society prohibits . . . certain activities not because they harm others but because they are considered . . . immoral . . . . [A]bsent specific constitutional protec-tion for the conduct involved, the Constitution does not prohibit them simply be-cause they regulate ‘morality.’”). The roots of Scalia’s views are, like Bork’s, to be found in Holmes. Compare id. at 574–75 (“the dissenters believe that ‘offense to oth-ers’ ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever shared that Thoreauvian ‘you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else’ beau ideal”) with Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is inter-fered with by [various institutions] . . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”).


separate dissent, Justice Thomas added that he regarded the law at issue as “uncommonly silly,” and that if he were a member of the legislature, he would have voted to repeal it.283 He did not say that he merely disagreed with the statute for policy reasons: he consid-ered it “uncommonly silly.” But a law that is “uncommonly silly” cannot be said to be “rational,” and thereby to survive rational basis review. Indeed, the “rational basis” test is often analogized to the “laugh test,” so that just about the only things that fail it are laws that are “uncommonly silly.”284

Thomas went on to say that “punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”285 A lot is hidden in the word “worthy.” In what sense is it unworthy to spend law enforcement re-sources enforcing a valid statute? Is it merely a matter of budgetary priorities, or is it because using coercive power for such purposes is improper? Either way, the word “worthy” reflects a normative calcu-lation—that is, determining the “worthiness” of enforcement requires the judge to consider whether or not the state ought to be doing this thing, which is to say, one must ask what are the appropriate boundaries government must respect when limiting individual choice. Yet that is precisely the question at the heart of “substantive due process.” The due process of law clause forbids the government from doing things that, for pre-political reasons, are unworthy of a civilized government.

Finally, Justice Thomas concluded that the Constitution does not protect “a general right of privacy.”286 This claim is a common one, but it cannot be defended from the standpoint of the natural rights originalism to which Justice Thomas otherwise subscribes. The Constitution expressly protects all rights in the most general of

283 Lawrence, 539 U.S. at 605 (Thomas, J., dissenting). 284 According to one increasingly popular formulation, to fail the rational basis

test, a law must strike judges “as wrong with the force of a five-week-old, unrefrig-erated dead fish.” Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002) (quoting United States v. Searan, 259 F.3d 434, 447 (6th Cir. 2001); United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990)).

285 Lawrence, 539 U.S. at 605 (Thomas, J., dissenting). 286 Id. at 605–06 (quoting Griswold v. Connecticut, 381 U.S. 479, 530 (1965) (Stew-

art, J., dissenting)).


terms: that is, it protects “liberty”—an undifferentiated range of action freely to be chosen by individuals without undue govern-ment interference. This simply is a general right of privacy. All rights are rights to privacy. To say someone has a right to choose in some field of action is to say that she may act privately—that her choice is not a public matter and may not be overruled by public au-thorities. The freedom of religion means, for example, the right to make religious decisions privately, without the interference of the public. Liberty (which is an enumerated right) does not come in dis-crete quanta; it is by definition a “general right of privacy” from government interference. The Ninth Amendment reinforces this fact by emphasizing that the rights enumerated in the Bill of Rights are not the only rights. Thus, even aside from the question of whether the right to liberty or privacy should be construed as including the freedom to do any particular thing, like engage in homosexual sex or have an abortion, the Constitution certainly does protect a “gen-eral” right of privacy while allowing the legislature a limited discre-tion to set boundaries around that right. It protects a sea of liberty—both economic liberty and liberty of personal intimacy287—in which are situated islands of specified government power.288

In short, the effort by some conservatives to reconcile a natu-ral rights approach to the Constitution with the type of deference necessary to allow for legislative intrusion into intimate privacy is a doomed one. Either the Constitution means what it says about protecting individual freedom, or it does not. Either there are rights that no state may justly take from us, as the authors of the Constitution and of the Fourteenth Amendment believed, or rights are permissions which may be contracted or expanded to meet the needs of the collective. And the same time, of course, liberals who endorse strong judicial protection for privacy rights cannot continue to deny the importance of protecting economic liberty and private property rights. “[T]he categorical and inex-plicable exclusion of so-called ‘economic rights’” from protection

287 As Glenn Harlan Reynolds has observed, “original understanding philosophy, conscientiously and rigorously applied, actually supports the decision in Griswold.” Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Under-standing, 24 GA. L. REV. 1045, 1085 (1990).

288 See generally RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).


under the due process of law requirement “unquestionably in-volves policymaking rather than neutral legal analysis.”289

CONCLUSION

The authors of the Fourteenth Amendment intended to protect a broad range of natural and common law rights against interference by states and to put an end to the states’ rights theory of the Constitu-tion that had prevailed before the Civil War. The centerpiece of the Amendment’s protections was to have been the Privileges or Immu-nities Clause, although they also intended the Due Process Clause to provide strong “substantive” protection for individual rights. Sadly, the Privileges or Immunities Clause was deprived of its force in the Slaughter-House Cases when the Supreme Court embraced the very states’ rights conception of federalism and citizenship that the Amendment’s authors intended to abandon. In the years that fol-lowed, the Court did continue to protect individual rights under the Due Process Clause, but it was not until the Progressive era that law-yers and judges began to attack the Due Process Clause’s substantive dimension. It is this Progressive critique of substantive due process, and not the original intent of the framers, that modern conservatives embrace when they seek to overthrow substantive due process. Rightly understood, both the Privileges or Immunities Clause and the Due Process Clause provide “substantive” protection for individual rights against intrusions by the states.

289 United States v. Carlton, 512 U.S. 26, 41–42 (1994) (Scalia, J., concurring).

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